Sannamma vs State Of Karnataka By on 29 November, 2021

[Cites 42, Cited by 1]

Karnataka High Court

Sannamma vs State Of Karnataka By on 29 November, 2021

Bench: G Narendar

                         1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 29TH DAY OF NOVEMBER, 2021

                      PRESENT

       THE HON'BLE MR. JUSTICE G NARENDAR

                       AND

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       CRIMINAL APPEAL NO.1144 OF 2016

BETWEEN:

1. SANNAMMA
D/O PUTTASHETTY,
AGED ABOUT 22 YEARS

2. NINGAMMA
D/O PUTTASHETTY,
AGED ABOUT 20 YEARS

BOTH ARE RESIDING AT KOTHANURU VILLAGE,
GUNDLUPETE TALUK,
CHAMARAJA NAGAR DISTRICT-571313
                                    ...APPELLANTS
(BY SRI.MANJUNATH N D, ADVOCATE)

AND:

STATE OF KARNATAKA BY
GUNDLUPETE P.S, CHAMARAJANAGAR(D),
(REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-01
                                        ...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP)
                            2



     THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 28.06.2016 PASSED
BY THE ADDL. DIST. AND S.J., CHAMARAJANAGAR,
SITTING   AT   KOLLEGALA,    IN   S.C.NO.39/2012 -
CONVICTING THE APPELLANT/ACCUSED NO.1 AND 2 FOR
THE OFFENCE P/U/S 302 OF IPC AND ETC.,

     THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, G NARENDAR J., DELIVERED THE
FOLLOWING:

                     JUDGMENT

Heard the learned counsel for the appellants and the learned Additional State Public Prosecutor.

2. The appellants have been arraigned as accused Nos.1 and 2 before the trial Court and are the daughters of one Puttashetty and younger sisters of one Chikkarju s/o.Puttashetty.

Facts of the case:

3. It is the case of the prosecution that the hand of one Chikkathayamma d/o.P.W.2 was given in marriage to said Chikkaraju(P.W.5) and their marriage 3 was solemnized on 12.06.2011. That as per the prosecution P.W.5, the brother of the accused is said to have informed the deceased (his wife) that his sisters are not good natured and that from the date of marriage P.W.5 and deceased had made a separate matrimonial home and were living separately and away from the accused and their mother. That on the morning of the date of incident, the accused are said to have entered the house of the deceased and asked for jaggery to prepare tea and that deceased is said to have refused to share jaggery with the accused and that the accused angered by the same are said to have uttered that "you did not bring any dowry and without bringing dowry you married our brother, but, now, you have to bring dowry" and left. It is the further case of the prosecution that on the fateful day i.e. on 5.11.2011 at about 3.30 p.m. in the afternoon when the deceased was resting after having had her 4 meal, the accused are said to have entered the house, poured kerosene and lit fire to her resulting in her suffering about 95% of burn injuries over the body including the face, head, hair, neck, the torso and limbs. That the deceased is said to have been immediately shifted to the hospital at Gundlupet and the doctor at Gundlupet hospital (P.W.14) is said to have given certain first aid/preliminary treatment and thereafter has been referred to K.R. Hospital at Mysuru. That the doctors at K.R.Hospital, Mysuru, admitted the deceased for treatment into burns ward. That despite their best efforts, the deceased succumbed to the injuries suffered by her on 7.11.2011. On these allegations, the Investigating Officer has laid the charge sheet.

Arguments:

4. The learned counsel for the appellants would vehemently contend that question of there 5 being an harassment itself is unfounded, as it has been elicited and admitted by the witnesses, more particularly PWs.2 and 5 that the deceased and PW.5 her husband, had a separate matrimonial home and were living away from the accused and their mother.

He would contend that no particular incident of harassment has been narrated by any of the witnesses and that the witnesses have merely parroted in general terms and that the trial court having rightly disbelieved and having found no evidence to demonstrate the charge of dowry harassment has gravely erred in upholding the charge of 302 of IPC. He would contend that in the absence of eye witnesses motivation acquires prominence. That the trial Court having rejected the charge of dowry harassment, it failed to see that there was no motivation or cause for the accused-appellants to commit the murder of the deceased. He would further 6 contend that mere omission to cross examine the witness would not constitute an admission of guilt. He would contend that it is the cardinal principle of Criminal Jurisprudence that the burden and onus is on the prosecution to demonstrate the guilt of the accused beyond reasonable doubt. He would further vehemently contend that even admitting for argument sake that the version of PW.2 can be considered as evidence. He would draw our attention to the testimony of PW.2 and contend that even as per PW.2 the deceased never stated that she either saw the appellants-accused committing the act of spraying kerosene on her or lighting fire to her or even having observed the presence of the accused within the house. The mere statement that the deceased saw them on the street after she came out from inside the house cannot be a ground to presume that it is the accused who had entered the house, sprayed 7 kerosene over the deceased and set fire to the deceased. These are positive overt-acts and which required to be demonstrated by positive evidence. In the absence of any evidence demonstrating these overt-acts the trial court erred in presuming the guilt and the presumption is merely a presumption without a foundation or basis and hence warrants interference.

Evidence on behalf of the prosecution and observations:

5. The prosecution in order to prove the guilt of the accused beyond reasonable doubt has got examined P.Ws.1 to 20 and also got marked M.Os.1 to

6.

6. P.W.1 is the scribe who authored the complaint Ex.P1. He has deposed to the extent that he knows the complainant and her daughter/deceased and that the complaint was prepared on the say of 8 P.W.2 and her left hand thumb impression has been affixed on the complaint. P.W.1 has been subjected to cross-examination. P.W.1 is neither an eye witness nor a circumstantial witness or a chance witness to explain any circumstances. Hence there is nothing incriminating against the accused.

7. P.W.2 is the mother of the victim and she has deposed that she had given the hand of her daughter in marriage to P.W.5. The marriage was performed about 3 to 4 months prior to her demise.

That the accused present in the Court are the sisters of P.W.5. That the deceased, accused and P.W.9 were residing in the same house. That the accused used to trouble her daughter because she had not brought any money or property along with her at the time of performance of marriage and that the accused were troubling the deceased and quarrelling with her for not having brought any property or money to the 9 matrimonial home. She has deposed that about four months back when she and her younger brother Madashetty were in the house, the police informed that her daughter was not doing well and that she by the deceased that it is the accused who poured immediately rushed to Gundlupet hospital; that she was informed kerosene and lit fire on her and after setting fire to .her locked the front door and left; that the motive for causing the death of her daughter is because her daughter refused to give jaggery when requested by the accused in the morning. That later, she lodged a complaint with the Police. That thereafter, she again proceeded to Gundlupet police and lodged a complaint after the demise of her daughter. It is shocking to note that there has been no cross-examination of the witness. On a query, the defence counsel submits that he has been informed by the trial Court counsel that he has not carried out 10 cross-examination of P.W.2 because no further opportunity was granted. On perusal, it is seen that the Court has noted the absence of the counsel on the date of examination in chief. This approach by the trial Court cannot be appreciated at all.

8. P.W.3 is a villager. The witness has deposed that the daughter of P.W.2, Chikkathayamma, had poured kerosene on herself and set fire to herself. He further states that he had seen the body at hospital and the entire body was completely burnt. This corroborates the medical findings that the deceased had suffered burns till her ankle.

9. P.W.4 is one Siddamma. She has deposed that she knows the accused before the Court. That the brother of the accused P.W.5 is also known to her. P.W.4 has denied of having given any statement to 11 the police. She has further denied that the accused used to quarrel with the deceased on the ground that she had not brought any dowry or property to the matrimonial house or that their brother had transformed and was a changed person after the marriage. She has further denied that when the accident occurred at about 3.00 p.m. in the afternoon, P.W.5 left home after informing his wife and after some time, she heard the deceased screaming and that she immediately rushed to the house of the deceased and found her writhing in pain; that the accused who were there proclaimed that this is the end of the deceased and left the place. That she has further denied that when she went into the house and enquired with the deceased, upon which the deceased is said to have revealed to her that in the morning she did not share jaggery with the accused on their demand hence they had returned in the afternoon, 12 poured kerosene and set fire to her and went outside immediately after setting her on fire and locked the door and stood near the door. She has further denied that she is deposing falsely because the accused hails from the same village. This witness has not supported the prosecution case.

10. P.W.5-Chikkaraju s/o.Puttashetty is none other than the brother of the accused and husband of deceased. He has deposed that deceased is his second wife and the accused and he are residing separately. That his mother is not residing with him. That he and the deceased have been residing separately even prior to the incident. That he has deposed that accused have not ill-treated his wife. He further denies that they have tortured the deceased by stating that her brother has stopped providing them after the marriage and that she is responsible for the same. That the deceased has not informed him 13 as to how she suffered burn injuries. He has also denied having given a statement to the police and he has been treated as a hostile witness and cross- examined by the public prosecutor. He denies that he had advised his wife not to interfere or get entangled with anybody. He denies that he went back to his house after being informed over phone by one Rajaiah Shetty. That he carried his wife to the hospital in the same auto in which he went home. He further admits that the doctors of Gundlupet Hospital advised that patient be taken to a Higher Medical Center, K.R. Hospital at Mysuru. That thereafter he and Rajaiah Shetty carried the deceased in a car. He denies having enquired with the deceased while traveling to Mysuru as to how she suffered the injuries. He further denies that the accused had carried grudge because on the same day morning the deceased had refused to share jaggery with them. He further denies having 14 recorded a statement that the deceased had stated that while she was sleeping, the accused had poured kerosene and set fire to her and she screamed and when tried to come out she found the door was locked and after sometime, she felt that the door had been opened and when she came out of the house she found that the accused were standing there and proclaimed that this is the end of her. He denies having attempted to depose falsely.

11. P.W.6 is one Raja Shetty s/o. L.Shetty. The records reveal that it is P.W.6 and P.W.5-Chikkaraju, husband of the deceased who had carried the injured to the hospital at Gundlupet and K.R. Hospital, Mysuru. The witness identifies the accused as his paternal uncle's daughters and that he knows P.W.5. That he had not attended wedding ceremony of P.W.5 and deceased and he does not know much about their marriage also. Further denies of the deceased having 15 disclosed about any ill-treatment meted to her by the accused. He denies the suggestion that he had not carried the injured to the hospital. This witness is treated as hostile and cross-examined by the prosecutor. He has denied all the suggestions and nothing which incriminates the accused has been elicited in the cross-examination.

12. P.W.7 is one Nagashetty and is a neighbor of PW.2 and EX.P.6 is marked through him. In his cross- examination-in-chief he submits that he does not know what is written in EX.P.6. He further denies the recovery of any incriminating material in his presence. He further denies that he does not know who was the other pancha and he has been treated as hostile. He has denied all the suggestions put to him by the Public Prosecutor and which incriminate the accused. The evidence of PW.7 does not in any 16 manner aid the case of the prosecution in proving the guilt beyond reasonable doubt.

13. PW.8 is one the Devashetty. He denies having seen the accused elsewhere except in the Court. That he knows the deceased and her parents. He admits having been present in the engagement ceremony between the deceased and PW.5. He states that he does not remember if the accused were present during the engagement ceremony. He denies that PW.2, the mother of the deceased had shared the information about the harassment to his daughter and he also states that he does not know the reason for the death of the deceased. He denies having given any statement to the police. He is treated as hostile, but nothing adverse to the accused nor any admission incriminating the accused is elicited. 17

14. PW.9 has also deposed on the lines of PW.8 and nothing adverse is elicited in his cross examination by the Public Prosecutor.

15. PW.10 has also deposed on the lines of PWs.8 and 9 and he has been treated hostile and nothing useful to the prosecution has been elicited.

16. PWs.11 and 12 have also deposed on similar lines and have not supported the case of the prosecution.

17. PW.13 is the brother of PW.2 and maternal uncle of the deceased. He states that PW.2 is his elder sister and the deceased is his niece. That the deceased was given in marriage to PW.5 three years ago and that he along with PWs.8 to 12 had attended the engagement ceremony. That till six months after marriage the deceased and PW.5 were leading happy life and thereafter the accused started torturing the 18 deceased by proclaiming that she had got married to their brother without bringing any dowry. And that both the deceased and PW.2 have narrated the incident to him, that he pacified the deceased and sent her. That six months after the marriage the deceased and PW.5 started residing separately. That the deceased had informed him that they were forced to make a separate house as they could not bear the harassment meted out by the accused. That about two and a half years ago Begur police had informed him that the deceased had suffered burn injuries and asked him to go and meet her. And on receipt of the information he and PW.2 went and met the deceased in the hospital. That when he and PW.2 went and enquired with her about the incident it is stated that the deceased informed them that after her husband had lunch and went out she was sleeping and awoke when kerosene was poured on her and she was set on 19 fire and that she got up screaming and came running out and she saw the accused standing outside and that the fire was put out and she was brought to hospital. That he found burn injuries on her body. That thereafter he and PW.2 along with two others from Kothanur took the victim and got her admitted to K R Hospital, at Mysuru. That three days thereafter the victim passed away. In the cross examination he admits that they have neither complained to the village elders or to the police about the alleged harassment said to have been meted out by the accused that he knows about the earlier marriage of PW.5 and he having abandoned his first wife. He suggests that he is not aware that the first wife left PW.5 because he was not taking good care of her. He denies the suggestion that he had advised against giving the hand of the deceased in marriage with the PW.5. He denies having any knowledge about the 20 blindness and deafness of PW.5's father. He admits that PW.5 and deceased were living separately from the date of marriage itself and contrary to what he has deposed. He states that he was informed by the Begur police at about 4 p.m. and that they went to Gundlupet hospital at 5.00 p.m. He denies that he had not seen the victim in Gundlupet hospital and that he had seen the victim only in KR hospital. He denies the suggestion that when he saw the victim in K R hospital, Mysuru, she was not in a position to speak. He denies the suggestion that the deceased was not inclined to marry PW.5 but she was forced by them. He denies the suggestion that because of the compulsion exacted by them Chikkathayamma was not on speaking terms with him. He denies that he is deposing on the advise of third parties.

18. PW.14 is the Chief Medical Officer of Gundlupet Government Hospital. He states that he 21 has been in service from 14.07.2010 till date. That on 5.11.2011 at about 4.30 in the evening one Rajashetty brought the victim who had suffered burns. That he examined the burn victim and found burn injuries on the face, neck, chest, two hands, shoulders, stomach, back and both the limbs. That he had estimated the victim had suffered 95-99% burns and because of the burns the eyes were closed. That he administered first aid and also life saving drugs and recommended her to K.R. hospital, Mysuru. That the victim was unconscious and was not in a position to speak and has produced the concerned MLC register which is marked as EX.P.13 and his signature is marked as EX.P.13(a). In the cross examination on behalf of the accused he states that Rajashetty, PW.6 had brought the victim and he did not observe anybody else. He does not know if the police had recorded the statements of the relatives or not. From 22 the above the evidence what falls for appreciation is that the victim was taken to the hospital by PW.6 and the doctor has not noted the presence of the others and that the victim was unconscious and was not in a position to speak on account of the fact that she had suffered 95-99% burns. It also negates the claim of PW.13 and PW.2 (maternal uncle & mother of deceased) that he had taken the injured to the hospital.

19. PW.15 is the son-in-law of PW.2, the complainant and mother of the deceased. He deposed about the marriage and about the engagement and about the harassment at the hands of the accused. He has also deposed on similar lines as PW.13. He would state that the elder brother of PW.5 one Doddaraju had called him on phone and had informed him about 3-4 months back that the deceased had not returned to the house of PW.5 and that he advised the 23 deceased and ensured her return to the matrimonial home. That one week thereafter he yet again received a call from the said Doddaraju stating that his sister-in-law (deceased) is seriously unwell and asked him to come to Gundlupet hospital and that when he and his wife reached Gundlupet hospital, they informed that the victim had already been shifted to K R hospital, Mysuru and that when they went to Mysuru K R Hospital and met the victim, they found burn injuries all over her body. On enquiry the deceased is said to have informed them that about three in the afternoon she had lunch and went to sleep, at which point of time the accused came and asked her to give some jaggery and when she refused to give the same they poured kerosene on her and set fire to her and that she succumbed to the injuries three days thereafter. In the cross examination he admits that the deceased had left the matrimonial 24 home only on one occasion and on the said occasion she had stayed with her mother for about a week. At that juncture neither was any complaint addressed to the village elders or to the police. That from the date of marriage PW.5 and the deceased were living separately from the family of PW.5, the husband. He further admits that when he reached Gundlupet hospital it was about 8 p.m. That he went to Mysuru K R hospital on the next day at 9.00 a.m. That the victim informed him that the accused had poured kerosene and lit fire to her. That he does not know in which ward the victim was kept or where he met her. He denies having not gone to the hospital. He denies the suggestion that he is deposing on the advise of his mother-in-law.

20. PW.16 is the wife of PW.15 and is the elder sister of the deceased and is a resident of Maleyuru. She deposes about the wedding and the PW.5 and the 25 deceased having lived happily for about 4 - 5 months. That when the deceased came back to her matrimonial home for the Deepavali festival she refused to go back to her husband's home as the accused were fighting with her and abusing her. That she confronted and advised her and sent her back. That one week thereafter the said Doddaraju, the elder brother of PW.5 is said to have called her on phone and informed her that the deceased was seriously ill. That when she reached the Gundlupet hospital she was informed that the patient was shifted to K R hospital at Mysuru. That next day they went to K R hospital, Mysuru and her body was completely covered with burn injuries and on enquiry the deceased is said to have stated that the accused poured kerosene and set her on fire and that she revealed the motive for setting her on fire, because she refused to give the jaggery. In the cross 26 examination on behalf of the accused she admits that she has not visited her younger sister at the matrimonial home after the marriage. That she does not know as to how many brothers and sisters PW.5 has. She denies the suggestion that the deceased was not happy with her marriage to PW.5. She states that it was 6.30 p.m. when she reached Gundlupet hospital, she states that the deceased was kept in the emergency ward of K R hospital. She denies that the deceased was not in a position to speak when they went to K R Hospital.

21. PW.18 is the doctor who rendered medical aid and initial treatment to the deceased at the first instance in the medical emergency / trauma care centre at K R Hospital. In his deposition he has stated that he has been working as a medical officer for the last two years. That on 5.11.2011 at about 8 p.m. when he was discharging his duties at the trauma 27 care/emergency care department at about 8.25 in the night the victim Chikkathayamma w/o Chikkaraju was brought in 108 ambulance and was informed that she had suffered burn injuries at home at about 3.00 p.m. in the afternoon and that when he enquired with the injured she is said to have stated that when she was asleep at home some unknown person came and poured kerosene and lit fire to her and that she does not know who that person was and on examination he found that she has suffered burn injuries to an extent of 85 - 90% and that the burn injuries were both superficial and deep in nature and that thereafter he shifted her to the burns ward. That he has recorded the above information in the MLC register and on the request of the police he has also forwarded the same to them and the same is marked as EX.P.18 and his signature as EX.P.18(a) and in the cross examination he has denied the suggestion that when she was 28 brought to him she was not in a position to speak. He has admitted that there is a possibility of Carbon Dioxide caused on account of burning the body could have entered into her body through the mouth. He further denies the suggestion that the deceased had not given the history as stated by him supra.

22. PW.17 is the doctor at K R Hospital, Mysuru, who treated the deceased and he has deposed that on 7.11.2011 at around 2.30 in the afternoon when he was in the surgery department the PSI, Gundlupet police station had approached him and requested him to certify if the deceased Chikka Thayamma who had been admitted to the burns ward was in a position to give her statement. He would state that in compliance with the request he visited the burns ward and after examining the victim/deceased had issued an endorsement stating that she was not in a position to make any statement. 29 The requisition letter from the police and the endorsement issued by him have been marked as EX.P.17 and his endorsement is marked as EX.P.17(a). He has further deposed that the extent of burn injury suffered by the deceased was between 95- 99% and that the deceased passed away on the same day at 3.10 in the afternoon.

23. PW.19 is the retired Deputy Superintendent of Police. That on 08.11.2011 he received an emergency information at about 6 in the evening regarding the incident and that he took up investigation on 09.11.2011 and visited the crime scene at Kothanur village and reached there at about 11 p.m. and at the time of his visit the neighbors who are engaged in coolie work had left their homes and the accused had absconded. That he deputed officers to secure the accused. That his efforts to identify witnesses failed because none from the village was 30 coming forward to depose. That he thereafter visited Begur village. As the final rights of the deceased was to be carried out he deputed Begur police to secure the situation and that he directed the Begur police to secure the witnesses after the completion of the final rights. Thereafter he recorded the statements from Dundamma, Venkatarama Shjetty, Mahadeva Shetty s/o Madashetty, Mahadevamma, Subbamma, Somalli Subbamma, D.Ramesh, Devashetty, Puttaswamyshetty, Kempashetty, Subbashetty, Karishetty, Manishetty and Rangaraju. That the CPI was directed to secure their statements. That the accused have absconded. That he has directed the PSI to obtain the spot assessment sketch and the PM report. That he has continued the investigation on 10.11.2011. The witness has neither disclosed nor deposed about anything which incriminates the accused. PW.20 has also deposed on similar lines. 31

24. EX.P1 is the complaint by PW.2, the mother of the deceased. She has narrated that she has got written the complaint with the help of PW.1. That her second daughter Chikka Thayamma @ Thayammna had been given in marriage to resident of Kothanur village one Chikkaraju S/o Puttashetty. That the marriage was performed about four months ago. That the husband and wife were leading happy life. That Sannamma and Ningamma the accused herein being the younger sisters of the son-in-law were harassing her daughter on the alleged premise that she had not brought any dowry and that they have complained that after the marriage their elder brother started ignoring them and that they are not getting anything from him. That on 5.11.2011 at about 3.30 p.m. in the afternoon when her daughter the victim was alone and sleeping at home the accused entered the house and sprinkled kerosene and lit fire to her daughter on 32 account of which her daughter suffered severe burn injures. That one Rajushetty has brought her daughter to K R Hospital, Mysuru and that when they went to the hospital the deceased is said to have informed PW.2 about the alleged act of the accused of spraying kerosene and lighting fire to her and that the deceased passed away at about 3 p.m. in the afternoon i.e., on 07.11.2011. It is pertinent to note that the complaint is lodged on 08.11.2011 and is registered at 2 p.m.

25. EX.P.2 is the crime scene report, EX.P.3 is the statement of PW.2, the mother of the deceased where she reiterates the earlier statement in the complaint with an improvement that the accused demanded for jaggery and that apart it is stated that after her daughter was set on fire, her daughter attempted to come out, but the door was locked, but thereafter she realized that the door was opened and 33 she saw the two accused were standing outside. That the accused have deliberately poured kerosene on her daughter with the intention of killing her and committing murder. EX.P.6 is the spot panchanama. EX.P.19 is the PM report. EX.P.17 is the endorsement by the doctor and EX.P.18 is the MLC register.

26. We have given our anxious consideration to the contentions raised on behalf of both the counsels and examined the material on record. Re-appreciation of evidence:

27. The trial Court has placed reliance on EX.P.1, the complaint which is given to the police on 8.11.2011 at about 2 p.m. in the afternoon and is registered as Crime No.441/2011 for the offences punishable under Section 307 read with Section 34 of the IPC and Section 498(A) and 304(B) read with Section 34 of the IPC along with Section 4 of the 34 Dowry Prohibition Act. The inquest report is prepared on 7.11.2011 and is marked as EX.P2. It is stated that the inquest report is conducted on 7.11.2011 at about 3 p.m. in the afternoon. It is relevant to note the deposition of PW.13 who has deposed that the deceased passed away at 3.10 p.m. on 7.11.2011. EX.P.16 is the requisition by the police to record the statement of the deceased given to PW.17 and the endorsement is marked as EX.P17. The PM report is produced as EX.P.19 and has conducted on 9.1.2011. The PM report records the presence of second and third degree burns all over the body except at the front of the abdomen and genetelia and records ante mortem burns at 90% and the opinion regarding death is that death is due to shock, as a result of burns sustained. In that view of the matter, there is no dispute with regard to the fact that the death was on account of the burns sustained. The trial Court has 35 examined the complaint at EX.P1 and EX.P3 the statement said to have been recorded from PW.2. It is stated that the statement is recorded on 6.11.2011 i.e., on the next day of the incident and registered at 7 p.m. as Crime No.441/2011 for offences under Section 307 read with Section 34 of the IPC i.e., EX.P3 is the statement prior to the death of the victim and EX.P1 is the complaint after the death of the victim.

28. On a reading of EX.P3 it is apparent that the husband and wife i.e., PW.5 and the deceased were living happily after marriage and that the son-in- law - PW.5 had made a separate residence by setting up his wife away from his sisters and mother. That whenever her daughter visited the parental home she kept recollecting the harassment suffered by her at the hands of the accused and also when she had gone to invite them for Deepavali festival the son-in-law had informed that as she herself had come down to 36 take his wife he permitted his wife, the deceased to accompany her mother and asked her to return back after attending the festival at Mahadeshwara Hills. That on 29.10.2011 the deceased returned to matrimonial home along with PW.5. On 5.11.2011 she received a phone call from Rajashetty who informed that her daughter was very serious and has been taken to Gundlupet Government hospital. That immediately she and her brother Madashetty proceeded to Gundlupet hospital and there she saw her daughter having suffered burn injuries all over the face, body, hands and legs and when she enquired, the deceased informed her that in the morning both the accused had come to the house and asked her to share some jaggery and when she refused the accused are said to have picked up a fight and further stated that prior to marriage their brother was providing them with everything and after her coming 37 he has stopped providing anything at all and that she is the reason for this change and that they would take care of her properly and further abused her and thereafter left the place. That thereafter her husband after lunch told her that he is going for fishing and further advised her not to get involved with any one and that thereafter she was alone and she went to sleep. Suddenly somebody poured kerosene and lit fire to her. When she woke up and saw her body was on fire, she immediately screamed and tried to open the main door but found the main door locked and when she tried again the door opened and she came outside and she saw her sister-in-laws standing there and based on the said statement PW.2 has stated that when her daughter was alone at home and was sleeping the accused at about 3.30 p.m. in the afternoon poured kerosene and set her on fire and have attempted to murder her.

29. From a reading of that portion of the statement where PW.2 narrates the information given by her daughter recorded in first person and on appreciation of the said statement it can be seen that the deceased has not named the accused as the persons who poured kerosene and lit fire to her. It is her statement that when she woke up she saw her body on fire and that by screaming and screeching she made an attempt to come out but the main door did not yield and thereafter when she tried once again the door opened and when she came out she saw both the accused standing outside. The statement of the deceased as "re-counted" by PW.2 would go to show the presence of the accused outside the house and on the street. It is also pertinent to note that PW.2 has not been cross-examined by the counsel for the accused. It is nobody's case nor any evidence is let in to demonstrate that the door was locked from 39 outside or that anybody had seen the accused entering the house or exiting the house.

30. The trial Court after appreciating the evidence has discarded the theory of demand for dowry. Thus there being no eye witnesses/ocular evidence, the case hinges on the alleged dying declaration said to have been made by the deceased to her mother and this along with the fact, that the PW.2 has not been cross examined has become the pivot for the trial Court to render a judgment of conviction.

31. The deposition of PW.2 and its effect and implications has been discussed in paragraphs 29, 30, 31 and 32. The trial Court has concluded that the failure to cross examine P.W.2 i.e., the mother of the deceased has its own implications and that it is settled law that failure to cross examine the witness on 40 incriminating material namely the alleged dying declaration would go against the accused and in this regard placed reliance on the ruling reported in AIR 2002 SC 3652 rendered in the case of Sarwan Singh vs. State of Punjab and has held that the failure to cross examine has left the Court with no option but to accept the evidence of PW.2. In paragraphs 32 the trial Court has held that PW.2 in her evidence has stated that when she enquired with the deceased the deceased informed her that the accused persons poured kerosene and lit fire to her and went away by locking the door from outside. The Court also notes that PW.2 has not testified that she enquired with her daughter and her daughter informed her thus and holds that the evidence of PW.2 is vague. The trial Court further holds that PW.2 has stated similarly in EX.P.1 and EX.P.3 and thereafter holds contrarily that PW.2 enquired with her daughter 41 and daughter in turn informed her about the sequence of events and thus it holds that on a conjoint reading of the testimony of PW.2 and EX.P1 and EX.P3 it has to be inferred that the accused poured kerosene and set fire to the deceased and that the failure to cross examine PW.2 has proved fatal.

32. The trial Court has also examined the testimonies of PWs.17 and 18, the doctors at K R Hospital. PW.18 is the doctor who initially treated her at the emergency care center and has enquired with the deceased whereupon the deceased is said to have informed the doctor that she does not know who poured kerosene and set fire to her. It is pertinent to note here itself that this statement was made on 5.11.2011. The subsequent statement and endorsement by PW.17 the doctor who treated her at the burns ward is on 7.11.2011 at 2.30 and the trial Court adopting an erroneous approach proceeded to 42 conclude that on account of a passage of more than 47 hours from the time of the incident till the time of endorsement the same cannot be taken as proof that the deceased was not in a position to make the statement. This approach without reference to the testimony of PW.18, the doctor who first treated her and who recorded the history at the first instance on 5.11.2011 itself seriously contradicts and impinges the finding recorded by the trial Court. We find that EX.P.18 is recorded by PW.18 at the first instance when the deceased was brought to the hospital and it is recorded as under:

"Referred from GH, Gundlupet.

Patient conscious, responding to verbal commands, PR 92/m, h/o burn at around 3 p.m. at her residence on 5.11.2011 in Kothanur, Gundlupet taluk. The patient states that she was sleeping at her residence and someone poured kerosene 43 on her and lit her on fire. But she does not know who poured kerosene on her. 85- 90% superficial to deep burns. Admit in burns ward."

33. This is the case history recorded at K R Hospital immediately after she was brought to the hospital and recorded at the emergency ward. From the history of the incident recorded, the statement of the deceased with reference to the assailant is in singular and would make it clear that the act was committed by a single person and that she does not know who the assailant is. There is no reasoning as to why this statement has been discarded or ignored by the trial Court. It is also relevant to note that the history does not state that the patient was oriented. Neither the evidence of PW.18 nor EX.P.18 have been debunked or impeached.

34. Hence the only material that remains, even as per the trial Court is the testimony of PW.2 and her statements in the complaints at EXs.P.1 and P.3. The trial Court has treated the alleged statement by the deceased to PW.2 as a dying declaration.

35. In this regard it is necessary to examine the law on the aspect of 'dying declaration'. A three Judges bench of the Hon'ble Apex Court in the case of Jayamma and another vs. State of Karnataka reported in (2021) 6 SCC 213 while appreciating the aspect of dying declaration has been pleased to observe and hold in paragraphs 14, 15, 16, 17 and paragraphs 22 and 23 as under:

" 14. Before we advert to the actual admissibility and credibility of the dying declaration (Ext. P-5), it will be beneficial to brace ourselves of the case law on the evidentiary value of a dying declaration and the sustenance of conviction solely based 45 thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.

14.1. In P.V. Radhakrishna v. State of Karnataka, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard-and-fast rule of universal application in this regard and much would depend upon the nature of the burns, part of the body affected, impact of burns on the faculties to think and other relevant factor.

14.2. In Chacko v. State of Kerala, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a 46 lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.

14.3. In Sham Shankar Kankaria v.

State of Maharashtra, it was restated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is 47 the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat wherein this Court (at SCC pp. 480-81, para 18) summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria reiterated: (Sham Shankar Kankaria, SCC pp. 172-73, para 11) "11. ... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.);

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar .);

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the 48 declaration. (See K. Ramachandra Reddy v.

Public Prosecutor.);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.);

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.);

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.);

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself 49 guarantees truth. (See Surajdeo Ojha v. State of Bihar.);

(ix) Normally 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 eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.);

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)"

15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the deceased admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and 51 if found reliable, it can certainly form the basis for conviction.

16. We may also take note of the decision of this Court in Surinder Kumar. In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 95-97% burn injuries. Thereafter, it was noted that "at the time of recording the statement of the deceased ... no endorsement of the doctor was made about her position to make such statement", and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was "fit to give statement". This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence held that although there is neither a rule of law nor of prudence 52 that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

17. Consistent with the cited principles, this Court refused to uphold the conviction in Sampat Babso Kale v. State of Maharashtra. The dying declaration in that case was made by a victim who had suffered 98% burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that: (SCC p. 744, para 14) "14. ... the endorsement made by the doctor that the victim was in a fit state of mind 53 to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."

(emphasis supplied)

22. Having meditated over the issue to the extent it is possible, and on a minute examination of the original document Ext. P-5 (without understanding its contents as it is in Kannada language except that the endorsement of the doctor is in English) read with its true translation placed on record, we do not find it totally safe to convict the appellants on the basis of the said document along with its corroboration by PW 11 and PW

16. We say so for several reasons as summarised hereinafter:

22.1.Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision.

Although it is stated that the deceased was questioned by the police officer, the purported dying declaration is not in a questions and 54 answers format. The direct or indirect dominance of the police officer appears to have influenced the answers only in one direction.

22.2.Secondly, the injured victim was an illiterate old person and it appears beyond human probabilities that she would have been able to narrate the minutes of the incident with such a high degree of accuracy.

22.3.Thirdly, there is sufficient evidence on record that the victim had been administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. We say so at the cost of repetition that the doctor (PW 16) made the endorsement that the victim was in a fit state of mind to make the statement "after" the statement was recorded and not "before" thereto -- being the normal practice. It further appears to us that faculties of the injured had been drastically impaired and instead of making statement in an informative form she 55 had apparently endorsed what the police officer (PW 11) intended to. True it is that the police officer (PW 11) had no axe to grind or a motive to implicate the appellants, but his overenthusiasm to solve a criminal case within no time seems to have swayed the police officer (PW 11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself.

22.4.Fourthly, there is a serious contradiction between the statement of Dr A. Thippeswamy (PW 16) on one hand and the police officer K.V. Mallikarjunappa (PW 11) on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police officer claims that her hands were safe and she could put her thumb impression. We have seen the thumb impression very scrupulously and the same appears to be 56 absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in respect of the nature and gravity of injuries, stands belied.

22.5.Fifthly, and most importantly the police officer K.V. Mallikarjunappa (PW 11) candidly admits that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement. Both the police officer as well as the doctor have tried to cover up this serious lacuna by referring to the purported oral endorsement of the doctor. It appears that the police officer was in full command of the situation and with a view to fill up the legal lacuna, he later on secured the endorsement from the doctor (PW 16) on the available space of the paper, which is ex facie unusual and not in line with settled legal procedure.

22.6.Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene 57 and lit the victim on fire only because her son had assaulted the husband of Appellant 1 and the accused were insisting on payment of Rs 4000 which was spent on the treatment of the said assault victim. Not much can be said when the deceased's own son and daughter-in-law have denied this incident and rather claimed that their mother/mother-in-law committed suicide.

22.7. The Seventh reason to dissuade us from harping upon Ext. P-5 is the conduct of the parties i.e. a natural recourse expected to happen. Had it been a case of homicidal death, and the victim's son (PW 2) and her daughter- in-law (PW 5) had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the 58 deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide.

22.8. The Eighth reason which makes us reluctant to accept the contents of purported dying declaration (Ext. P-5), is the fact that victim, Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22-9-1998. She succumbed to her burn injuries after almost 30 hours later at 5.30 a.m. on 23-9-1998. It is neither the case of prosecution nor has it been so stated by PW 11 or PW 16 that soon after recording her statement (Ext. P-5) she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such officers are judicially trained to record dying declarations after complying with all the mandatory prerequisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. We hasten to add that 59 the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case.

23. The other important reason to depart from the High Court's view re conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378 CrPC should not be routinely invoked where the view formed by the trial court was a "possible view". The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that 60 there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to reappreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

36. The aspect of dying declaration is also been considered by another bench of the Hon'ble Apex Court in the case of Arvind Singh vs. State of Bihar reported in (2001) 6 SCC 407 and the Hon'ble Apex Court while dealing with the effect of burn injuries and the alleged dying declaration by a person who has suffered extensive burn injures has observed in paragraphs 5, 7, 17, 18, 19 and 20 as under:

5. The High Court also in no uncertain terms recorded that the statement of Mr Verma stands justified by reason of 61 interpolation on the first information report.

The High Court also came to the conclusion that there is no evidence whatsoever that prior to the date of occurrence, there was any demand for dowry by the accused persons and it is on the basis of the aforesaid that the High Court set aside the conviction and sentence of Janardan Singh, Lilawati Devi and Navin Kumar Singh under Section 304-B read with Section 34 of the Penal Code, 1860 as also under Section 120-B of the Penal Code, 1860. The conviction under Section 498-A however, read with Section 34 was confirmed and the bail bonds granted in favour of the three accused noticed above were directed to be cancelled and they were ordered to be taken into custody forthwith for serving out the remaining sentences. As regards Arvind Singh, the husband, the High Court came to the conclusion that his conviction ought to be converted from Section 304-B to Section 302 of the Penal Code, 1860 and sentenced him to undergo imprisonment for life besides the conviction and sentence of 3 years under Section 498-A IPC. In the result the criminal appeal was partly allowed so far as Appellants 62 1, 2 and 4 were concerned but Appellant 3 being the husband (Arvind Singh), subject to the modification of conviction was dismissed and hence the appeal before this Court by the grant of special leave.

7. Be it noted here that if the burn is of a distinctive shape a corresponding hot object may be identified being applied to the skin and thus abrasions will have distinctive patterns but in the event a burn injury is the cause of death then 60% cases are of septicaemia and 34% cases are of bronchopneumonia. Where infection was by pseudomonas pyocyanea, spread to unburnt skin ulceration may occur, and internal infection by this organism is especially liable to damage the walls of blood vessels. Gram-negative shock may also occur. The external examination in the normal cases are found in the body being removed from a burnt building and in the event of such a removal the cause of death would be inhalation of fumes rather than septicaemia as noticed above. In the event the body is not removed from the room and the same remains in situ, an examination of the scene must be 63 attempted, as with any other scene of suspicious death, note being taken as regards the position of the body, clothes remaining if any and identifiable objects in the room and so on. The examination of the burns is also directed to ascertain their position and depth, as to whether they were sustained in life or not, and whether their situation gives any indication of the path taken by the flames or the position of the body when the fire started. If the body is very severely burnt then all the skin surface may be destroyed, even sometimes making it rather difficult for identification of the body. A body that is badly burnt assumes the appearance known as "pugilistic attitude" and this is due to heat stiffening and contraction of the muscles, causing the arms to become flexed at the elbows and the hands clenched, the head slightly extended and the knees bent. The appearance resembles the position adopted by a person engaged in a fight and has led on occasions to suspicion that the death occurred during some violent crime. In fact, of course, the body will assume this position when the fire started. The other aspect of the burn injury 64 is that heat ruptures may be produced. These are splits of the skin, caused by contraction of the heated and coagulated tissues, and the resultant breaches look like lacerated wounds. They are usually only a few inches, but may be up to 1 or 2 ft in length. Normally they lead to no difficulty in interpretation, since they occur only in areas of severe burning, and normally over fleshy areas of the body, like calves and thighs where lacerations are uncommon. However, when they occur in the scalp they may cause greater difficulties. They can usually be distinguished from wounds inflicted before the body was burnt, by their appearance, position in areas of maximum burning and on fleshy areas, and by the associated findings on internal examination. (See in this context Taylor's Medical Jurisprudence.)

17. Be it noted that the dying declaration herein has not been effected before any doctor or any independent witness but to the mother who is said to have arrived at the place only in the morning -- the mother admittedly is an interested witness; though that by itself would not discredit the evidence tendered in court 65 but the fact remains that the doctor's evidence considering the nature of the burns posed a considerable doubt as to whether such a statement could be made half-an-hour before the death of the accused. It is not that the statement of the unfortunate girl was otherwise not clear or there was existing some doubt as to the exact words, on the contrary the definite evidence tendered is that there is clear unequivocal statement from the daughter of the family that the conjoint efforts of putting kerosene thereafter with a lighted matchstick has resulted in the burn injury. The severity of the burn injury and its impact on the body speaks volumes by reason of the death of the deceased. It is the reliance on such a dying declaration by the High Court which shall thus have to be scrutinized with a certain degree of caution.

18. The dying declaration in the instant matter, thus we must confess, raised a certain amount of eyebrows and Mr Verma also with his usual eloquence did put a strong protest in regard thereto. The evidence of this declaration depicts that just before a few 66 minutes of her death, the deceased would make a declaration quietly to the mother naming therein all the three relations along with the husband who poured kerosene to burn her alive. This is not acceptable, more so having regard to the declaration being made to the mother only. In any event, is it conceivable that the husband along with the father-in-law, mother-in-law, brother-in-law would start pouring kerosene together on to the girl -- as if each was prepared with a can of kerosene to pour simultaneously -- this not only would lead to an absurdity but reliance on such a vague statement would be opposed to the basic tenets of law. Further, it is in evidence that the deceased had extensive burns including on her mouth, nose and lips -- if any credence is to be allowed to the same, then and in that event, the evidence of the mother about the confession stands belied by itself. Significantly, the doctor's evidence as is available on record would also go a long way in the unacceptability of the evidence of the mother as regards confession. In no uncertain terms the doctor PW 8 stated that the death may have taken place at once and within ten seconds by reason 67 of the extensive nature of the burns and the deceased could not have survived beyond 10 minutes. Another redeeming feature that the declaration of the deceased was made only to the mother but before the arrival of the mother, the incident was made known to the police authorities and, in fact, the police was present when the mother and the brother arrived. It is highly unlikely that the police will not make any attempt to have a statement by the deceased but if it was otherwise possible, immediately on its arrival rather than wait for the mother to arrive. Two recent decisions of this Court may be of some assistance -- the first in point of time is the decision of a three- Judge Bench of this Court in the case of Paparambaka Rosamma v. State of A.P. wherein this Court in no uncertain terms observed that there ought not to be any hesitancy in the mind of the court in regard to the truthfulness and voluntary nature of disclosure of the incident. In Rosamma case one Dr K. Vishnupriya Devi had stated in the Court that the injured was conscious but she had not deposed that the injured was in a fit state of mind to make a statement. It did come 68 on record that the girl had sustained 90% burn injuries and it is in that perspective, this Court held (at SCC p. 701, para 8) 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"

-- the medical certification, therefore, was felt to be a primary element in the matter of a dying declaration -- unfortunately we do not have any certification of whatsoever nature, it is only the uncorroborated testimony of the mother to whom the deceased was supposed to have made the declaration as noticed above. In para 9 of the Report in Rosamma case however, this Court had the following to state:

(SCC pp. 701-02) "9. It is true that the medical officer Dr K. Vishnupriya Devi (PW 10) at the end of the dying declaration had certified 'patient is conscious while recording the statement'. It 69 has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (PW 9) who performed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that 'patient is conscious while recording the statement'. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-

14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and 70 resultantly they erred in accepting the said dying declaration (Ex. P-14) as true, genuine and as made when the injured was in a fit state of mind. In medical science two stages, namely, conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below."

19. In a similar vein, another three- Judge Bench of this Court in Koli Chunilal Savji v. State of Gujarat observed that in the absence of the doctor while recording a dying declaration, the same loses its value and cannot be accepted. In paras 6 and 7 of the Report, this Court observed: (SCC pp. 565-66) "6. In view of the rival submissions made at the Bar, two questions really arise for our consideration:

(1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr Keswani, appearing for the appellants.

(2) Whether the High Court exceeded its jurisdiction in interfering with the order of acquittal, recorded by the learned Sessions Judge.

7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr Keswani, that in the absence of the doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr Keswani in this connection relies upon the decision of this Court in the case of Maniram v. State of M.P. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements 72 are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. State of Punjab this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. State of Punjab this Court has examined the same question and held: (SCC p. 547, para 5) 73 'As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner.'"

20. Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. Significantly, the High Court has set aside the conviction and sentence under Section 304-B read with Sections 34 and 120-B of the Penal Code, 1860 so far as the father-in-

law, the mother-in-law and the brother-in-law are concerned though maintained the conviction under Section 498-A. So far as the husband is concerned the High Court converted the charge from Section 304-B to 302 on the ground that the only motive of the murder could be attributed to the husband "who must be interested in committing such offence so that he can perform another marriage" -- this is rather a far-fetched assumption without any cogent evidence available on record. Needless to record here that excepting one of the very keenly interested witnesses, the episode of the applicant being married again does not come from any other witness and the factum of marriage also, though stated is devoid of any particulars even as regards the name, the date of marriage etc. It is on record that on the arrival of the mother and the brother of the deceased, they found an assembly of a large number of mohalla people -- but none of them were called upon to even give a corroboration to this part of the evidence of the accused marrying after the death of the deceased: no independent witness was thought of, though the factum of marriage could have been 75 corroborated by an outside agency. The FIR and the other oral evidence available if read together full credence is attributed to the same but that itself does not and cannot permit the High Court to come to such an assumption. The assumption is faulty and is wholly devoid of any substance. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and in the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded hereinbefore in this judgment. Significantly, even the dying declaration, whatever it is worth, has implicated all the four accused in a similar manner. There is no additional piece of evidence implicating the husband which would permit the High Court to convert the charge of Section 304-B to 302 -- true punishment of life imprisonment is available under Section 304-B but that is the maximum available under the section and for Section 302 the same is the minimum available under the section. Though discretion to further award minimum cannot be 76 taken away from the court. Section 302 is a much more heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband. The factum of the husband, if interested in committing such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to that effect, cannot be said to be an acceptable assumption since it is without any evidentiary support. The assumption by itself in our view is untenable."

37. Another three Judges bench of the Hon'ble Apex Court in the case of Paparambaka Rosamma and others vs. State of A.P. reported in (1999) 7 SCC 695 has been pleased to observe and hold in para 8, 9 and 13 as under:

" 8. The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr K. Vishnupriya Devi (PW 10) who was attached to Tenali Government Hospital 77 examined Smt Venkata Ramana on 4-3-1994 at 1.30 p.m. She then sent a requisition (Ex. P-9) to the Magistrate Shri K. Lakshmana Rao (PW 13) to record the dying declaration of the injured. All that Dr K. Vishnupriya Devi has stated is that the injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It has come on record that Smt Venkata Ramana had sustained 90% burn injuries. K. Lakshmana Rao (PW 13) who recorded the dying declaration has made a note in Ex. P-14 -- the dying declaration after putting some preliminary questions to the injured and it reads as under:

"On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit disposing state of mind to make a declaration."

Thereafter, the learned Magistrate proceeded to record the dying declaration. At the end, Dr K. Vishnupriya Devi (PW 10) has appended a certificate saying "patient is conscious while recording the statement". The question that needs to be considered is as to whether the 78 Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. In our opinion, 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. It is a case of circumstantial evidence and the only circumstances relied upon by the prosecution is the dying declaration.

9. It is true that the medical officer Dr K. Vishnupriya Devi (PW 10) at the end of the dying declaration had certified "patient is conscious while recording the statement". It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (PW 9) who performed the post-mortem stated that the injured had sustained 90% burn 79 injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement". In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-

14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex. P-14) as true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are 80 distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.

13. We are thus unable to share the view and reasoning given by the courts below. Consequently, we are unable to uphold the conviction and sentence inflicted upon A-1, A-2 and A-3 by the courts below. The conviction and sentence of each of A-1, A-2 and A-3 is accordingly quashed and set aside."

38. In the case of Maniram vs. State of MP reported in 1994 Supp (2) SCC 539 the Hon'ble Apex Court while dealing with the case of bride burning and two dying declarations has observed and hold in para 3 as under:

3. In this appeal, Shri Gambhir, learned counsel for the appellant submits that Ex. P-19 would show that it was recorded by a Sub-

Inspector (PW 9) not by the Tehsildar (PW 10), as alleged by the prosecution and that at any 81 rate when there is no other evidence except the dying declaration, it should be beyond suspicion and should be wholly reliable. He pointed out several infirmities, namely, that no attestation from the doctor was taken to the effect whether the patient was conscious or not and that the signature or thumb impression of the deceased was not taken and thirdly the perusal of Ex. P-19 shows that the dying declaration was recorded by the Sub-Inspector (PW 9) and not by the Tehsildar (PW 10) as being put forward by the prosecution. We find considerable force in this submission. As already submitted, Ex. P-7 is only in the nature of the FIR and it was recorded by the Sub- Inspector and that by itself does not inspire confidence. Now coming to Ex. P-19, PW 10 deposed that he recorded the dying declaration and he himself attested that the patient was conscious. He was cross-examined at length as to why he did not ask the doctor to be present and certify whether the patient was conscious. He has not given any convincing answer. That apart, he admitted that he did not think it necessary to take the signature of the deceased person or at least take the thumb 82 impression. Further, a perusal of the dying declaration shows that the Sub-Inspector was present and he has affixed his signature on Ex. P-19 and put the date and time which is exactly the time at which the recording of the dying declaration is said to have been recorded by PW 10. In the body of the dying declaration, we only find the signature of PW 9. After that, there is an endorsement of the Tehsildar that the declarant was in the state of senses and was fully aware of what she had stated. It looks like that the Tehsildar was present and the declaration was recorded by the Sub- Inspector and the Tehsildar made only an endorsement that the patient was conscious. The contents of Ex. P-19 are completely at variance with the deposition of PW 10 when he says that he recorded the dying declaration. That apart, in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important 83 requirements which have to be observed. In the instant case, as noted above, there is no other evidence against the appellant except this dying declaration which is of highly doubtful nature. In our view, the learned Sessions Judge has given the good reasons for acquitting the accused and the view taken by him is quite reasonable and there is no good ground for reversing the same by the High Court. In the result, we set aside the conviction and sentence awarded against the appellant and allow the appeal. If he is in jail, he shall be released forthwith. A copy of this judgment shall be despatched immediately.

39. In the backdrop of the law settled by the Hon'ble Apex Court, as hereinabove noted, if the material on record more particularly, the material relied upon by the trial Court, namely the testimony of PW.2, the mother and her complaints recorded and marked as EXs.P1 and P3 are appreciated, in our considered opinion, the same could not have been the 84 basis for rendering the judgment of conviction. The Sessions Court has been swayed by the fact of failure of the defence to cross examine PW.2. The law as enunciated by the Hon'ble Apex Court calls for corroboration.

40. In the case on hand the Sessions Court failed to appreciate the fact that the deceased had suffered 90% burns and that too second degree and third degree burns and some of the affected areas were the face, throat, chest. The Sessions Court failed to appreciate whether the victim who has suffered 90% burns, that too second and third degree burns, would be oriented enough to narrate the incident. Secondly, the Court also failed to take note of the fact that PW.2 has made no effort to intimate the doctors or the police of the statement made by her daughter nor made any attempt to have the statement recorded without any inordinate delay. She 85 claims that the deceased daughter made the statements at both Gundlupet Hospital and K. R.Hospital at Mysuru. Yet at neither of the hospitals she has attempted to have recorded. Though she claims that the deceased made the statements she has nowhere asserted that the deceased was oriented and conscious to make the statement nor has she stated that the statements were made in the presence of the doctors.

41. The attempt by the police to have the statement recorded on 07.11.2011 just minutes before the victim passed away, is deplorable. The Sessions Court in our opinion should have appreciated the testimony of PW.2 in the backdrop of EX.P.18 and EX.P.17. The extract of the medical register maintained by the hospital and recorded by the medical officer on duty wherein it has been clearly recorded that the victim did not state who poured 86 kerosene and set her on fire. That apart had the Sessions Court appreciated the testimony of PW.2 in the backdrop of EX.P.18 and in the light of the fact that PW.2 was an interested witness, the Sessions Court could not have arrived at a conclusion at which it has. That apart a reading of EX.P.3 as noted supra, the first person account recorded in EX.P.3 would clearly demolish the testimony of PW.2 that her daughter narrated to her that the accused poured kerosene and set fire. The said portion of the statement as relied upon by the trial Court is extracted herein below:

"On a plain reading it is apparent that even as per the alleged statement the daughter is said to have informed her mother that she woke up once she was set on fire and that when she looked she saw her body on fire and that she started screaming and shouting and tried to run out but found the door locked and again 87 when she tried the door opened and when she ran out she saw both the accused standing there."

From the above statement it can neither be inferred that the deceased stated that she saw the accused pouring kerosene upon her or setting fire to her much less of the deceased having seen the accused inside the house. In our considered opinion tne Sessions court has completely misread the evidence and has been carried away by the singular fact that there has been no cross examination of PW.2.

One other reason why we are inclined to disbelieve PW-2 is the testimony of the Doctor at Gundlupet Hospital, who has stated that the victim was unconscious. This testimony is not shaken. 88

42. As held by the Apex Court dying declarations especially in the case of burn injuries and that too where the burn injuries are extensive and of a higher degree i.e., second or third degree, the same has to be carefully scrutinized by the Session Court, and it ought to look for corroboration, more especially when the dying declaration is not recorded. In the instant case the dying declaration is not recorded by any independent or impartial witness apart from the recording in the MLC register and the medical records. The alleged dying declaration is said to have been made before interested parties, namely the mother and other relatives of the mother, namely maternal uncle, etc.,

43. In fact the manner in which the interested witnesses have deposed about the dying declaration leaves us aghast. There is no evidence with regard to the treatment given to the patient and the 89 consequences of the treatment i.e., whether any pain killers or sedatives were administered to the patient; whether the victim was conscious or was oriented to make a statement; whether despite the extensive and severe burns to the face and neck, it would have been possible for the victim to speak or make a statement; none of this is forthcoming. In the absence of such critical material, in our opinion the conclusion by the trial Court is whimsical. Apparently, the Sessions Court has failed in its duty to appreciate the testimony of PW.2 and other relatives/interested witnesses in the backdrop of the testimonies by PWs.17 and 18 and EX.P.17, 17(a) and EX.P.18. The evidence of PW.2 and the other relatives is not only diametrically opposite to the evidence rendered by the independent witnesses, who are none other than the medical doctors who treated the patient, but are also impartial and uninterested witnesses and their testimonies are 90 backed by the records maintained in the course of discharge of their duties. All these aspects have been given a go-bye and the Sessions Court has proceeded on the footing, as if the testimony of PW.2 is the gospel truth. Though our sympathies are with the mother who has lost her daughter, but yet the guilt of an accused has to be established on the basis of legally acceptable evidence. It is not apparent as to whether the police have failed to have the statements recorded or if they omitted to make efforts to record a statement of the deceased in the light of EX.P.18. The material on record more particularly, EX.P.17 and 17(a) would reflect an attempt by the police to have a statement recorded but the attempt at 2.30 p.m. on 7.11.2011 has been rejected by PW.17 the doctor treating her at the burns ward on the basis that the patient was not fit and capable of making a statement. 91 The fact also remains that the victim passed away within 30 to 40 minutes thereafter.

44. The Sessions Court has also failed to appreciate the fact of the deceased and PW-5, residing separately. The Sessions Court having rightly disbelieved the prosecution version of "dowry demand" or "harassment", ought to have pondered on the motive aspect. Apart from the interested version of the mother and her relatives no other independent witness has been examined to support the theory. No has a single independent witness even whispered about any misunderstandings between the deceased and the accused. The theory that the accused, who are younger sisters of PW-5, harassed the elder brother's wife and too in the rural village causes disbelief and that too when the elder brother was residing separately.

45. The statement at EX.P.18 being the extract of medical register maintained by the hospital authorities and the entry made by PW.18 in the course of discharge of his duties has stood unimpeached.

46. Assuming that PW.2 and her relatives namely, PWs.13, 15, 16 is to be taken as true, then we are constrained to conclude that it defies logic. Here is a victim who has suffered more than 90% burns, and if their statement is to be believed the five of them i.e., PW.2, mother of the victim, PW.13 brother of PW.2, PW.5 son in law of PW.2 and PW.16 elder daughter of PW.2 were allowed, a free passage into the burns ward and to stay beside a person who has suffered second and third degree burns in excess of 90%. It is common knowledge that burns wards are normally off limits to outsiders in order to prevent setting in or prevent the victim from contracting 93 infection. In that light, the statements defy logic, rendering the version improbable. The trial Court has also failed to appreciate that none of the witnesses have even mentioned about the presence of the doctor or any other medical staff of the hospital at the time of making of the statement. Assuming for argument sake that what all went in at the same time and were permitted to be at the bed-side of the victim, then it becomes even more intriguing. There is no material to demonstrate that the victim was capable of making such a statement on 6.11.2011 or 7.11.2011 and that too repeating the same to the witnesses one after the other. In our considered opinion the failure of the Sessions Court to appreciate the testimony of PWs.2, 13, 15 and 16 in the backdrop of the testimony by PWs.14, 17, 18 and EXs.P.17, 17(a) and 18 renders the appreciation perverse. That apart the testimony of PW.14 clearly 94 negates the claim of PW.2 that her daughter spoke to her and made a statement at Gundlupet hospital. PW.14 the doctor who attended to the victim at the Government Hospital, Gundlupet has stated as under:

" On 5.11.2011 at about 4.30 one Rajashetty brought the victim Chikka Thayamma w/o Chikka Raja Shetty in view of the burn injury suffered by her and on examination the face, neck chest, both the arms and shoulders, stomach, the back and both limbs had suffered burn injuries. The person had suffered 95% - 99% burns. That on account of the burn injuries the eyes had been closed, given first aid and administered life saving drugs and referred her to Mysuru hospital. That the injured was unconscious and was not in a position to talk."

47. This testimony has also remain unimpeached. The trial Court could not have wished 95 away the testimony of these impartial and uninterested witnesses and to top it they are witnesses who are medically and professionally competent to state such an opinion.

48. Insofar as the reliance on the ruling of Sarwan Singh vs. State of Punjab by the Sessions Court, we have no quarrel with the proposition but the Sessions Court HAS failed to note that it has been rendered under the TADA Act and in our humble opinion the same is not applicable to the facts and circumstances of the instant case. The said proposition does not in any manner absolve the trial Court of its duty to scrutinize the testimony and search for evidence which unerringly point towards the guilt of the accused.

49. It would not be out of place to state that it is a cardinal principle of criminal jurisprudence that 96 the entire burden of proving the guilt of the accused "beyond a reasonable doubt" rests entirely on the "Prosecution" and the success of the prosecution must be relatable to it's strength rather than the "weakness" of the defence. A useful reference could be made to some of the observations rendered by the Hon'ble Apex Court in the case of Nagaraj Vs. State of Tamil Nadu reported in (2015) 4 SCC 739 in paragraphs 13, 14 and 15 it has been observed as under:

" 13. The conviction is predicated on circumstantial evidence alone. Fingerprints have not been lifted from the scene, the murder weapon has not been recovered, and any credible motive is absent. It cannot even be contended that the accused was the last person to be seen with the deceased since several persons including the Manager, PW 1, and the guests in the adjoining rooms could have accessed the room where the deceased was 97 eventually found. While circumstantial evidence is sufficient to return a conviction, this is possible if it contains all the links that connect the accused to the incident, and the inconsistencies are extremely trivial in character. Furthermore, motive assumes great significance where a conviction is sought to be predicated on circumstantial evidence alone, and its absence can tilt the scales in favour of the accused where all links are not avowedly present. We think that the High Court erred in concluding that the complicity of the accused in the murder of the deceased had been proved beyond reasonable doubt.

14. The impugned judgment [Nagaraj v. Inspector of Police, Criminal Appeal No. 426 of 2003, decided on 5-10-2005 (Mad)] has found the answers of the accused under Section 313 CrPC evasive and untrustworthy, and held this to be another factor indicating his guilt. Section 313 CrPC is of seminal importance in our criminal law 98 jurisdiction and, therefore, justifies reiteration and elucidation by this Court. We shall start, with profit, by reproducing extracts from the 41st Report of the Law Commission made in the context of Section 342 of the old Criminal Procedure Code which corresponds to this section where the Commission observed, inter alia, thus:

"24.40.Section 342 -- Introductory.-- Section 342 is one of the most important sections in the Code. It requires that the Court must, at the close of prosecution evidence, examine the accused 'for the purpose of enabling him to explain any circumstances appearing in the evidence against him'. The section for a moment, brushes aside all counsel, all prosecutors, all witnesses, and all third persons. It seeks to establish a direct dialogue between the Court and the accused for the purpose of enabling the accused to give his explanation. For a while the section was misunderstood and regarded as authorising 99 an inquisitorial interrogation of the accused, which is not its object at all. The key to the section is contained in the first sixteen words of the section. Giving an opportunity to the accused to explain the circumstances appearing in the evidence is the only object of the examination. He may, if he chooses, keep his mouth shut or he may give a full explanation, or, he is so advised, he may explain only a part of the case against him.

     *      *        *
     24.45.     Section        342   should   be

retained.--We have, after considering the various aspects of the matter as summarised above, come to the conclusion that Section 342 should not be deleted. In our opinion, the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future."

100

"Clause 320.-- The existing provision in Section 342(2) enabling a Court to draw an inference, whether adverse or not from an answer or a refusal to answer a question put to the accused during the examination, is being omitted as it may offend Article 20(3) of the Constitution. -- SOR"

15. In the context of this aspect of the law it has been held by this Court in Parsuram Pandey v. State of Bihar [(2004) 13 SCC 189 : 2005 SCC (Cri) 113] that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Asraf Ali v. State of Assam [(2008) 16 SCC 328 : 101

(2010) 4 SCC (Cri) 278] . In Sher Singh v. State of Haryana [(2015) 3 SCC 724 :

(2015) 1 SCR 29] this Court has recently clarified that because of the language employed in Section 304-B IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person's right not to incriminate himself.

It is only in the backdrop of Section 304-B IPC that an accused must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the court to return a finding of guilt on this score. Even if it is assumed that his 102 statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not 103 correct in drawing an adverse inference against the accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC."

50. In view of the above findings we are of the considered opinion that the prosecution has failed to prove the guilt of the accused, muchless beyond reasonable doubt. We find the appreciation of the evidence by the Sessions Court vitiated by perversity and is based on the wrongful inference that the omission to cross examine or examine PW.2 has rendered the prosecution case fool proof.

51. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 28.06.2016 is set aside and the accused are directed to be set at liberty, and be released from jail, if not required in any other case.

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The operative portion be communicated to the concerned jail authorities.

In view of the above, I.A.No.1/2018 does not survive for consideration and accordingly, the same is disposed of.

Sd/-

JUDGE Sd/-

JUDGE *alb/ykl

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