Karnataka High Court
Basavaraj Narayan Jadav vs The State Of Karnataka on 30 May, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100371 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100371 OF 2018 (C)
BETWEEN:
1. BASAVARAJ NARAYAN JADAV
AGE: 41 YEARS,
OCC: MAISON WORK,
R/O: OLD HUBBALLI,
ARAVIND NAGAR,
BENIND BIJAPUR HOSPITAL,
HUBBALLI.
...APPELLANT
(BY SRI. K.S.PATIL, ADV. FOR SRI.AJAY U PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
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CRL.A No. 100371 of 2018
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH OLD HUBBALLI
POLICE STATION, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING
TO ALLOW THE PRESENT APPEAL BY SETTING ASIDE THE
JUDGMENT DATED 27.02.2018 PASSED BY THE COURT OF
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DHARWAD SITTING AT HUBBALLI, IN SESSIONS CASE
NO.54/2016 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 323, 324, 302, 498(A) AND 504 OF THE
INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, M.G.S.KAMAL J., DELIVERED THE
FOLLOWING:
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CRL.A No. 100371 of 2018
JUDGMENT
1. Present appeal is filed by the appellant/accused aggrieved by the judgment and order dated 27.02.2018 passed in S.C.No.54/2016 on the file of the V Additional District and Sessions Judge, Dharwad sitting at Hubballi (hereinafter referred to as 'the Trial Court'), by which the appellant/accused has been convicted for the offences punishable under;
a) Section 498A of Indian Penal Code (for short 'IPC') sentencing him to undergo rigorous imprisonment for one year six months and to pay fine of Rs.3000/- in default of payment of fine to undergo further imprisonment of six months; and,
b) under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.5000/- in default of payment of fine to undergo further simple imprisonment for a period of ten months.
2. The case of the prosecution is that the diseased-Ashwini and the accused-husband were married for eight years and had three children aged 6, 5 and 4 -4- CRL.A No. 100371 of 2018 years respectively. That the husband-accused was doing coolie work as a mason and the deceased was a house wife. Initially she was residing with her parents-in-law in a joint family. The deceased was being looked after well initially for a period of one year after the marriage and thereafter, the accused-husband started to suspect the fidelity of the deceased. That the accused had earlier married, which fact was not disclosed to the deceased. When the deceased enquired about the same, the elders of the family had mediated and pacified. However, even thereafter the accused continued to suspect the deceased and subjected her to physical and mental harassment. The deceased had visited her parents place who after learning about the harassment meted out to her by the accused advised and consoled her to join her husband and his family. That in the recent past the accused had raised loan and for the purpose of repaying the said loan, the deceased had borrowed certain amount from the relatives. That the mother of the deceased being aware of the same -5- CRL.A No. 100371 of 2018 had asked the deceased to return to Hubballi along with her husband and children. The mother of the deceased had arranged a rented house at Aravind Nagar, Hubballi where the deceased, her husband and children were residing since eight months prior to the date of incident. However, the accused continued his abusive and insulting behaviour towards the deceased. That on 20.11.2015, the accused had gone out for his work and the children had gone to the school and the deceased was alone at home. That about 12:30 p.m., the accused returned home and started shouting and abusing the deceased asking as to why she has not gone out. The deceased had asked the accused not to abuse and shout at her. However, the accused continued to abuse and insult the deceased with filthy language. At that time the daughter of the landlord had come to pacify. The deceased had asked the daughter of the landlord to leave as it was the quarrel between the husband and wife. Thereafter the accused assaulted the deceased with a club on her back, due to which, the -6- CRL.A No. 100371 of 2018 complainant had breathlessness and fell on to the ground and the accused strangulated her by his hands. The eyeballs of the deceased moved-up and the accused left her. The deceased got up and insisted that she would go to her parents place and lodge a police complaint to settle the differences, to which, the accused shouted in filthy language and being enraged, the accused brought a bottle of kerosene from inside and poured on to the deceased and set her ablaze. The deceased went on to hold the accused but he ran out of the house. The neighbours after hearing the cry of the deceased came and doused the fire and secured the ambulance and carried her to the hospital. The deceased narrated the aforesaid incident and sought for necessary action. The said statement was recorded on 21.11.2015 as per Ex.P23. Accordingly, the concerned police registered a case in Crime No.1269/2015 on 21.11.2015 for the offences punishable under Sections 323, 324, 307, 498A and 504 of IPC. Thereafter, on 27.11.2015 at about 4:30 p.m., the deceased succumbed -7- CRL.A No. 100371 of 2018 to the injuries during treatment. Accordingly the accused was charged with the offence punishable under Section 302 of IPC.
3. After the investigation a charge sheet was filed against the accused. The prosecution examined 20 witnesses as PWs.1 to 20 and exhibited 31 documents marked as Exs.P1 to P31 and produced 4 articles marked as M.Os.1 to 4. The statement of the accused was recorded on 11.01.2018. The Trial Court on appreciation of evidence, passed the impugned judgment and order convicting the accused for the offences punishable and Sections 302 and 498A of IPC and sentenced him to undergo imprisonment for life and one year six months rigorous imprisonment respectively. Being aggrieved by the same, the accused is before this Court.
4. Sri.K.S.Patil, learned counsel for the appellant/accused reiterating the grounds urged in the memorandum of appeal submitted that;
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a) the entire case of the prosecution is based on the circumstantial evidence and dying declaration at Ex.P13 and that there is no direct evidence justifying the implication of the accused;
b) that the death is not instantaneous and had apparently occurred after few days of the incident as such the accused cannot be charged for the offence under Section 302 of IPC;
c) the dying declaration at Ex.P13 has not been certified by an expert as required under Section 45 of the Indian Evidence Act and as such the said document is inadmissible in law and cannot be relied upon;
d) that the prosecution has not produced any cogent evidence to establish the fact that the deceased was in a fit mental condition to give complaint at Ex.P23 and dying declaration at Ex.P13;
e) the entire process of recording the complaint and the dying declaration and its veracity is doubtful and the benefit of which should be given to the accused.
f) Learned counsel for the appellant/ accused has relied upon the judgment of the Hon'ble -9- CRL.A No. 100371 of 2018 Supreme Court in the case of Mayur Panabhai Shah v. State Of Gujarat reported in (1982)2 SCC 396 and in the case of State of H.P. vs. Jai Lal and Ors. reported in (1999) 7 SCC 280.
Hence, seeks for allowing of the appeal.
5. Sri.V.M.Banakar, learned Additional SPP justifying the judgment and order passed by the Trial Court submits that the prosecution has produced sufficient cogent and acceptable evidence in the nature of PW.3-the mother of the deceased and PW.4-the aunt of the deceased to whom the diseased had personally disclosed about the entire incident of commission of the offence by the accused and the depositions of said witnesses remained unchallenged. That the recording of the statement/complaint at Ex.P23 and the dying declaration at Ex.P13 are fully and completely in accordance with law and no infirmity can be attributed to discard the same. The motive and conduct of the accused under the facts and circumstances of the case would further establish the case of the prosecution beyond reasonable doubt.
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CRL.A No. 100371 of 2018 Therefore seeks dismissal of the same. Learned Additional SPP has relied upon the judgment in the case of Ramesh and others vs. State of Haryana reported in (2017) 1 SCC 529.
6. Heard the learned counsel for the parties and perused the records.
7. As noted by the Trial Court PW.1 who is the witness to the panchanama of the scene of offence and seizure mahazar have supported the case of the prosecution. PW.2 who is an independent witness for inquest panchanama has also supported the case of the prosecution. PWs.3 and 4 are the mother and aunt respectively of the deceased who have supported the case of the prosecution. PWs.5 to 9, 11 and 14 who are the neighbours of the deceased though have not supported the case of the prosecution with regard to marital discard between the deceased and the accused have however not disputed carrying the injured deceased to the KIMS, Hubballi. PW.10-Taluka Executive Magistrate, PW.12-the
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CRL.A No. 100371 of 2018 duty doctor, who certified about the fitness of the deceased while recording the statement, PW.13-the doctor who treated and conducted the post mortem have supported the case of the prosecution. PW.20 has spoken about the use of kerosene for causing the fire.
8. The undisputed fact of the matter is that deceased-Ashwini sustained 90 to 95% burn injuries on 20.11.2015 at her residence in the presence of the accused, whereupon she was admitted to the hospital on the same day by the neighbours. Her statement in the nature of a complaint was recorded as per Ex.P23 and she had affixed her signature to the same. On the very same day, PW.12-Doctor had certified about the fitness of the deceased to give the declaration as per Ex.P13 recorded by PW.10-the Taluka Executive Magistrate at about 6:00 p.m. to 6:20 p.m. on 21.11.2015. Both in the complaint at Ex.P23 and in the dying declaration at Ex.P13, the deceased has held her husband namely the accused responsible for the burn injuries which she had sustained.
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CRL.A No. 100371 of 2018 It is this material evidence based on which the Trial Court has concluded and convicted the accused guilty of offences punishable under Sections 302 and 498A of IPC, the credibility of which the appellant is seeking to assail in the present appeal.
9. As per the postmortem report at Ex.P19 and deposition of PW.13-doctor who conducted post mortem on the body of the deceased, the description of the external injuries found are as under:
"Infected burns present in patches over face including lips and tip of nose, neck, front and back of chest, front of abdomen at places, back of abdomen, both upper limbs except palms and front of fingers, both lower limbs except palms and front of fingers, both lower limbs except both soles. Most of the burnt area shows areas of slough and puss at places. It is further mentioned about antemortem infected burns of 90%-95% of total body surface area being present on the dead body."
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CRL.A No. 100371 of 2018
10. The cause of the death of the deceased as per the post mortem was septicemia as a result of burn injuries.
11. Learned counsel for the appellant/accused referring to the burn injuries referred to in the postmortem report as above submitted that considering the nature and extent of burn injuries, it was impossible for the deceased to be in a fit condition to give statement as per Ex.P23 or dying declaration as per Ex.P13. He further submits that PW.12 was only an intern in the hospital and was not qualified and competent to issue certificate of fitness of the deceased. He further contended that since none of the witnesses have supported the case of the prosecution in its entirety and most of the witnesses having turned hostile and in view of the nature of injuries, placing reliance on Ex.P13-dying declaration and holding accused guilty of the offence has resulted in grave injustice.
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CRL.A No. 100371 of 2018
12. It is necessary to note that PW.3 is the mother of the deceased who in her evidence apart from reiterating her statement given during the investigation with regard to accused suspecting the fidelity of the deceased and subjecting her to physical and psychological torture has categorically deposed that she received the information from a neighbour of the deceased about the accused pouring kerosene on the deceased and setting her ablaze between 01:00 p.m. and 02:00 p.m. and about the deceased having been brought to the hospital for treatment. She further deposed that she along with her husband CW.8 had immediately gone to the hospital and at that the time the deceased who had suffered burn injuries was talking. That the deceased had told her that it was the accused who had set her ablaze and she had further informed the accused had gone out to work at 06:00 a.m. and after returning at 11:00 a.m., had assaulted the deceased and being enraged on deceased protesting the assault he had set her ablaze. That the
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CRL.A No. 100371 of 2018 deceased had stated about the incident to her and to the Police in her presence. That the deceased passed away after about a week of the incident due to the burn injuries.
13. In the cross-examination, PW.3 has denied the suggestion that due to burn injuries and the pain, the deceased was not in a position to speak and that she was not in a position to recognize the visitors. She has also denied the suggestions that the deceased had borrowed loans from several Women's Self Help Associations to lead her luxurious life without the knowledge of the accused and that the accused had objected for the same. She has also denied the suggestion that the deceased was receiving phone calls from the creditors demanding repayment of the loans and that not being able to withstand the pressure with an intention of creating fear in the minds of the creditors, deceased had set herself ablaze. She has also denied the suggestion that the deceased neither informed her nor the Police about the incident as she had severe pain of the injuries.
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CRL.A No. 100371 of 2018
14. PW.4 is the aunt of the deceased. She has deposed about the physical and mental harassment meted out to the deceased by the accused and also about she visiting the hospital on receipt of the information about the incident. She has deposed that the deceased on seeing her started to cry and had narrated about the incident of accused running away after setting her ablaze. In the cross-examination, it has been suggested to the said witness that the deceased was screaming in pain. She has denied the suggestion that the deceased was not in a position to recognize the visitors as she had suffered the burn injuries. The witness has categorically deposed that the deceased was aware of everything and was recognizing everyone. She has stated that the deceased had suffered burn injuries except her forehead, nose and fingers.
15. Thus the evidence of PW.3 and PW.4 reveal that the deceased had informed them personally about the accused assaulting her and setting her ablaze. The
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CRL.A No. 100371 of 2018 suggestions made to the said witnesses also reveal that the deceased was conscious as according to the defence the deceased was screaming in pain.
16. PW.10 who was the Executive Magistrate at the relevant point of time has deposed that upon receipt of the requisition as per Ex.P11 he had gone to the hospital and had given requisition to the medical officer to enquire the injured. The requisition so given by him is marked Ex.P12. That the medical officer had referred him to ward No.202 and had him to meet the duty doctor PW.12 who led him to the injured. There in the presence of PW.12 who had certified about the injured being in condition to speak. PW.10 has further deposed that he spoke to the injured in Kannada and upon he enquiring the injured had disclosed her age, occupation, religion, address and also she being admitted in hospital. That she also spoke about she having been brought to the hospital in an ambulance. That she held her husband responsible for the act. That she had also given the details about the incident which happened
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CRL.A No. 100371 of 2018 on 20.11.2015. All the details recorded in the presence of PW.12 who had affixed his signature on the declaration. In the cross-examination, PW.10 has denied the suggestion that the injured was screaming and shouting at that time due to pain. He has deposed that the injured was calm. He has also denied the suggestion that injured was not in a position to understand the question. He has also denied the suggestion that he recorded the statement upon the instruction of the Police. He has specifically denied the suggestion that due to burn injuries on the mouth and lips, the injured was not in a position to answer. Thus, nothing has been elicited during the cross-examination discrediting the evidence of PW.10.
17. PW.12 is the Doctor who has certified about the fitness of the deceased to give the declaration as per Ex.P13 recorded by PW.10 - the Taluka Executive Magistrate. In his deposition, the said witness has stated that he was pursuing his post graduation in Surgery at KIMS, Hubballi since 2014. That on the request, he had
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CRL.A No. 100371 of 2018 given a certificate about the deceased being fit enough to give her statement which is marked as Ex.P16 and his endorsement and signature is marked as Ex.P16(a). He has also spoken about he being present near the deceased as a duty doctor while recording the dying declaration at Ex.P13 by the Tahasildar PW.10. His signature thereof has been marked as Ex.P13(a). In the cross-examination, he has denied the suggestion that the patients who suffer 60% to 65% of the burn injuries would not be in a position to speak properly. He has stated that it differs from patient to patient. He has also denied the suggestion that a person with 90% and above burn injuries would not be able to comprehend or answer. He also denied the suggestion that the deceased having suffered 90% to 95% of the burn injuries was not in a position to give any statement.
18. The counsel for the appellant has assailed the deposition of PW.12 and also his issuing of certificate regarding the fitness of the deceased to give the
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CRL.A No. 100371 of 2018 statement on the premise that PW.12 was still pursuing his post graduation and was not qualified enough to give such a certificate. As rightly taken note of by the Trial Court, it is not in dispute that PW.12 had completed his graduation and was qualified enough to practice and treat any patients. He was just pursuing his post graduation which would not under any circumstances make him disqualified to give such a certificate as sought to be made out by the appellant.
19. The Apex Court in the case of Purshottam Chopra and another v. State (Govt. of NCT Delhi) reported in AIR 2020 SC 476 has summed up the principles relating to recording of dying declaration and its admissibility and reliability as under:
"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-
i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the
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statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."
(Emphasis Supplied)
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CRL.A No. 100371 of 2018
20. In the instant case, the dying declaration at Ex.P13 and the condition of the deceased to give the same has been established by the prosecution by leading cogent and acceptable evidence as noted hereinabove.
21. As regards the submission of the counsel for the appellant that since the deceased had suffered 90% to 95% burn injuries, that itself was sufficient to discard the theory of dying declaration, it is useful to refer the judgment of the Apex Court in the case of Vijay Pal vs. State (Government of NCT of Delhi) reported in (2015) 4 SCC 749 wherein at paragraphs 23 and 24 has held as under:
"23. It is contended by the learned counsel for the appellant when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat[9] wherein it has been held a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial Court should not have substituted its opinion for that of the doctor. In the light of the
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facts of the case, the dying declaration was found to be worthy of reliance.
24. In State of Madhya Pradesh v. Dal Singh and Others[10], a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible."
(Emphasis Supplied)
22. Similarly, the Apex Court in the case of Ramesh and others vs. State of Haryana reported in (2017) 1 SCC 529 at paragraph 36 has held as under:
"36. In view of the specific certification by the Doctor about the fitness of the deceased that she remained fit while recording the statement, the mere effect that she had suffered 100% burns would not, ipso facto, lead to the conclusion that the deceased was unconscious or that she was not in a proper state of mind to make a statement. At this stage, it would also be relevant to point out that no challenge was made by the defence to the aforesaid statement of the deceased on the ground that it was not made voluntarily or it was made by any extraneous circumstances or was the result of tutoring. In fact, even as per the appellants, it is they who had taken the deceased to the hospital and no other person known to her had come in her contact before the statement was recorded. On the contrary, PW- 3 and PW-4 (father and brother of the deceased respectively) have not supported the prosecution version, which aspect shall be dealt with later at the appropriate stage and, therefore, the question of tutoring does not arise at all."
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CRL.A No. 100371 of 2018
23. Thus from the material evidence of PWs.3 and 4 and that of PWs.10 and 12 and on perusal of Ex.P13 in the light of the law laid down by the Apex Court as above, it can be safely concluded that no infirmity can be attributed to the statements of the witnesses and with regard to the credibility and the veracity of the dying declaration relied upon by the prosecution and the Trial Court in proving and holding the accused guilty of committing the offence.
24. Learned counsel for the appellant/accused relied upon the judgment of the Apex Court in the case of Mayur Panabhai Shah supra wherein the Apex Court was dealing with the case involving conviction of offence under Section 376 of IPC, in which appeal filed against the conviction was dismissed summarily by the High Court, on the premise that "Courts have always taken doctors as witnesses of truth". The Apex Court while remanding the said matter for disposal on merits had observed that even where a doctor has deposed in Court, his evidence got to be appreciated like the evidence of any other witness and
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CRL.A No. 100371 of 2018 there is no irrebuttable presumption that a doctor is always a witness of truths. The learned counsel for the appellant has also relied upon the judgment in the case of State of H.P. vs. Jai Lal supra, a case dealing with offences under Sections 120B, 420 of IPC read with Section 5(2) of the Prevention of Corruption Act, 1947, wherein an issue involving the assessment of productivity of apple orchard was involved. The Apex Court has observed that an expert is not a witness of fact and his evidence is only an advisory in character and his duty is to furnish the Judge with necessary scientific criteria for testing the accuracy of the conclusion enabling the Judge to form his independent judgment. The facts and circumstances and the context of the aforesaid cases dealt with by the Apex Court are distinct and separate from that or the one involved in the present case. Reliance on the aforesaid judgments by the counsel for the appellant is hardly of any avail under the facts and circumstances of the case.
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CRL.A No. 100371 of 2018
25. It is relevant to note at this juncture, the conduct of the accused soon after the incident. The incident has occurred on 20.11.2015 at the house where the deceased was residing with her husband. The presence of the accused has not been disputed. The defence of the accused is that the deceased had borrowed several hand loans to lead her luxurious life and not been able to withstand the pressure of the creditors, had taken this step of setting herself ablaze. If that be so, no material evidence has been brought on record by the accused regarding the said defence. More particularly, in view of the fact that the incident had taken place at the residence and in the presence of the accused he was bound to explain the circumstances as required under Section 106 of the Evidence Act. Further, the accused was arrested on 18.12.2015 i.e., after about 28 days after the date of incident which fact has not been disputed. The factum of accused absconding from the scene and not taking any steps in the treatment of the deceased who survived for
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CRL.A No. 100371 of 2018 about 8 days after the incident would indicate the guilty conduct of the accused which is a relevant factor to be considered in the overall facts and circumstances of the matter. No justification has been offered by the accused in this regard even while recording statement under Section 313 of the Cr.P.C.
26. For the foregoing reasons and analysis, we are of the considered view that the prosecution has proved the guilt of the accused beyond reasonable doubts. The appeal is devoid of merits. Hence, the following:
ORDER Appeal is dismissed.
The impugned judgment of the Trial Court is confirmed.
SD/-
JUDGE SD/-
JUDGE KGK/Rsh