State Of Karnataka vs Prakash Holeppa Kudachi on 20 December, 2021

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Karnataka High Court

State Of Karnataka vs Prakash Holeppa Kudachi on 20 December, 2021

Bench: Suraj Govindaraj

                             1




           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

 DATED THIS THE 20th/23rd DAY OF DECEMBER, 2021

                         PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
       THE HON'BLE MS. JUSTICE J.M.KHAZI
           CRIMINAL APPEAL No.100345/2017

BETWEEN:

STATE OF KARNATAKA,
THROUGH HIREBAGEWADI POLICE
THROUGH THE ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                              ... APPELLANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND:

PRAKASH HOLEPPA KUDACHI,
AGE 34 YEARS, OCC: MASON,
R/O. BENDIGERI,
TALUKA AND DIST. BELAGAVI.
                                            ... RESPONDENT

(BY SRI. VITHAL S. TELI, ADVOCATE)

      THIS APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF
CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
04.03.2017 PASSED BY THE PRL. SESSIONS JUDGE, BELAGAVI, IN
S.C.NO.267/2015 AND TO CONVICT THE RESPONDENT/ACCUSED
                                        Crl.A No.100345/2017

                            2



FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 AND 504 OF
IPC.

     THIS APPEAL COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:

                      JUDGMENT

1. The State is on appeal, challenging the Judgment of the Principal Sessions Judge, Belagavi, at Belagavi in S.C.No.267/2015. By way of the said Judgment, the trial Court acquitted the accused having not found them guilty of the offences punishable under Sections 302 and 504 of the Indian Penal Code.

2. The case of the prosecution is that the accused is the husband of the deceased complainant Laxmi, father of the deceased Sangeeta and Sangamesh. At the time of the death, Sangeeta was aged 5 years and Sangamesh was 3 years. It is alleged that they were residing in the house of C.W.11 - Crl.A No.100345/2017 3 Manjula bearing VPC No.449/2001 of Bendigeri village in Belagavi Taluk.

3. On 25.03.2015, at about 00.30 hours, the accused came home in a drunken condition and invited Laxmi to sleep with him and have sex with him. She refused on the ground that she was having her menstrual cycle, the accused being enraged, abused her in vulgar language that she was always making excuses whenever he calls her, then he went to the other room got the petrol can kept in a plastic bottle, splashed the same over his wife and children, lit a matchstick and set them ablaze. As a result of which all three sustained injuries, Sangamesh expired on 25.03.2015 at 10.25 a.m., Laxmi expired on 29.03.2015 at 4.45 a.m. and Sangeeta expired on 11.04.2015 at 1.59 p.m., during the course of treatment.

Crl.A No.100345/2017

4. It is alleged that, during the treatment, the statement of the deceased Laxmi was recorded by P.W.27 the Head Constable in the presence of the Medical Officer, thereafter, P.W.27 registered a case in Hirebagwadi Police Station in Crime No.64/2015 against the accused for the offences punishable under Section 302 and 504 of IPC. Upon completion of the investigation, the Investigating Officer has filed a charge-sheet against the respondent/accused for the above offences before the JMFC III Court, Belagavi and supplied the copies thereof to the accused.

5. The offences being exclusively triable by the Sessions Court, the JMFC III Court, committed the case to the Principal Sessions Court, Belagavi. On such committal, the Sessions Court registered the case in S.C.No.267/2015, the presence of the accused was secured from the Judicial Custody. Crl.A No.100345/2017 5 Upon hearing the accused and the prosecution, charges were framed against the accused for the offences punishable under Section 302 and 504 of IPC, the same was read over and explained to the accused who pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution in all examined 30 witnesses as P.W.1 to P.W.30, got marked 53 documents at Ex.P.1 to Ex.P.53 as also 7 material objects at M.O.1 to M.O.7 and closed its side.

7. Thereafter, the evidence against the accused was put across to the accused, his statement was recorded under Section 313 of Cr.P.C., wherein he has denied all the incriminating evidence against him, the accused did not lead any evidence nor marked any documents in his defence. Crl.A No.100345/2017 6

8. Upon arguments being heard, the trial Court held the accused not guilty of the offence punishable under Section 302 and 504 of IPC and acquitted the accused of the charges. It is aggrieved by the same that the State is on appeal before this Court.

9. Sri. V.M.Banakar, learned Addl. SPP submitted that the trial Court has not considered the matter in the proper perspective.

9.1. The trial Court has failed to take into consideration the dying declaration of the deceased Laxmi which would categorically and unimpeachably establish that the accused having a motive had intentionally poured petrol on his wife and two children, set them ablaze causing their death. 9.2. The accused, though in an inebriated condition, was aware that pouring of petrol Crl.A No.100345/2017 7 and setting a person on fire would cause the death of that person.

9.3. As per the dying declaration, the deceased Laxmi has categorically stated that the accused had gone to another room and got the petrol and voiced his intention to cause the death of Laxmi and the children which if taken in its proper perspective, same would establish the guilt of the accused. He relied on the following decisions 9.4. The decision of the Apex Court in the case of Rakesh and another Vs. State of Haryana, reported in (2013) 4 SCC 69, more particularly, paragraph No.14 thereof, which is reproduced hereunder for easy reference:

"14. Dr S.P. Chug, Casualty Medical Officer, PGIMS, Rohtak was examined as PW 11. In his Crl.A No.100345/2017 8 evidence, he deposed that on 15-5-1998 at about 1.30 a.m ., he examined Kailash w/o Rakesh and on examination he found that the patient was conscious, pulse and BP were unrecordable. He further stated that there were superficial to deep burns involving almost all the body except the legs below the knees. There was approx. 85% burns which were subjected to surgeon's opinion and was kept under observation. Though it was pointed out that while recording the history of the patient, he noted that it was the accidental fire while cooking food, in view of the categorical statement by the deceased in her dying declaration the reference made by PW 11 while recording the history of the patient would not affect the prosecution case."

9.5. The decision of the Apex Court in the case of Ashabai and another Vs. State of Maharashtra, reported in 2013 (2) SCC 224, more particularly paragraph No.15 thereof, which is reproduced hereunder for easy reference:

"15. About the evidentiary value of the dying declaration of the deceased, it is relevant to refer to Section 32(1) of the Evidence Act, 1872, which reads as under:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant .- Statements, written or verbal, of relevant facts made by a person who is dead, or Crl.A No.100345/2017 9 who cannot be found, or whohasbecome incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death .-

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

(2)-(8) * * *"

It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, Crl.A No.100345/2017 10 keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other."

9.6. This is a fit case for this court to reverse the finding of the Trial Court, the entire evidence on record if considered in the proper perspective it is clear that the finding of the trial court is perverse and unsustainable. 9.7. The trial court had failed to take into consideration admissible evidence. In the present case, there are compelling Crl.A No.100345/2017 11 circumstances, requiring this court to interfere with the order of acquittal. 9.8. In this regard he relies upon the decision of the Apex Court in the case of Anwar Ali and another Vs. State of Himachal Pradesh, reported in 2020 (10) SC 166, more particularly paragraph Nos.14 and 24 thereof, which are reproduced hereunder for easy reference:

"14. Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered.

14.1. In the case of Babu (supra), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the Crl.A No.100345/2017 12 appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC

445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under:

(IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Crl.A No.100345/2017 13 Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC

755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

Crl.A No.100345/2017

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record; Crl.A No.100345/2017 15

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied) 14.2. When can the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so Crl.A No.100345/2017 16 outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC

636)." (emphasis supplied).

It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh (supra), this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) Crl.A No.100345/2017 17 "10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:

(SCC p. 416).

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the Crl.A No.100345/2017 18 conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was Crl.A No.100345/2017 19 unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. Crl.A No.100345/2017 20

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar56 that if motive is proved that would supply a link in the chain of circumstantial evidence but Crl.A No.100345/2017 21 the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu2, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under: (Babu case2, SCC pp. 200-01) "25. In State of U.P. v. Kishanpal57, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-39)

38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.

39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.'

26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N.58)" Crl.A No.100345/2017 22

9.9. Relying on the above, he submits that the order of the acquittal by the trial Court is not proper and is required to be reversed.

10. Sri. Vittal S. Teli, learned counsel for the accused would submit that 10.1. There is no motive as such which is available and or proved by the prosecution, for the accused to cause the death of the deceased Laxmi and two children.

10.2. The dying declaration is not supported by any other evidence. The dying declaration does not bear her thumb impression, but bears her toe impression, therefore, establishing that the deceased was not in a fit and proper condition to give her statement.

10.3. There is no independent evidence available on record apart from the dying declaration to Crl.A No.100345/2017 23 indicate that the accused poured petrol on the deceased and set them ablaze, none of the material witnesses has supported the case of the prosecution.

10.4. Even otherwise he submits that there is no offence under Section 302 which can be said to have been committed.

10.5. The accused was in an inebriated condition, he did not know the implication of his actions, therefore, there was no intention to cause the death of Laxmi and the two children.

10.6. If at all, it is only part 2 of 304 of IPC, which would be attracted and on this basis, he submits that the accused has been in judicial custody for a period of 3 years, the same could be taken into consideration as sufficient Crl.A No.100345/2017 24 sentence and the accused, even if found guilty, be enlarged.

10.7. He relies upon the decision of the Apex Court in the case of Jayamma and another Vs. State of Karnataka, reported in (2021) 6 SCC 213, more particularly paragraph No.11 thereof, which are reproduced hereunder for easy reference:

"14. Before we advert to the actual admissibility 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 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 Karnataka12, 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 Crl.A No.100345/2017 25 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 Kerala13, 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 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 Maharashtra14, 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 the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat15 wherein this Court summed up several previous judgments governing dying Crl.A No.100345/2017 26 declaration, the Court in Sham Shankar Kankaria14 reiterated:

"11. ... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration;

(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 declaration.

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details asto the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether the deceased was in a fit Crl.A No.100345/2017 27 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.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.

Ofcourse, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.

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 Crl.A No.100345/2017 28 evidence on the principle of necessity as there is very little hope of survival of the maker, and 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 Kumar9. 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 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 Maharashtra28. 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 Crl.A No.100345/2017 29 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:

"14. ... the endorsement made by the doctor that the victim was in a fit state of mind 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).

10.8. He also relies upon the decision of the Apex Court in the case of Maniben Vs. State of Gujarat, reported in (2009) 8 SCC 796, more particularly, paragraph Nos.11, 19 and 20 thereof, which are reproduced hereunder for easy reference:

11. Being aggrieved by the Judgment and Order of conviction passed by the Hon'ble Additional Sessions Judge, Gondal in Case No. 15 of 1985, the State of Gujarat preferred an appeal being Criminal Appeal No. 1198 of 1985 under Section 378 of the Criminal Procedure Code before the High Court of Gujarat with contention that the intention of the appellant was to cause the death of the deceased as she very well knew that her act of setting fire to the terylene clothes put on by the deceased was so Crl.A No.100345/2017 30 imminently dangerous that it would, in all probability, cause death of the deceased or such bodily injury as was likely to cause death of the deceased and, therefore, the appellant could not have been convicted for a lesser offence punishable under Section 304 Part-II of IPC but should have been convicted under Section 302 of IPC.

19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.

20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."

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10.9. On all the above grounds, he submits that the Judgment of the trial Court being proper and correct, does not require any interference even if this court would come to an unlikely conclusion that the accused is guilty of the offence, taking into consideration that the accused was in an inebriated condition, the same would come within the general exceptions to IPC in terms of Section 85 and 86 thereof attracting Part II of Section 304 and submits that the period which the accused was been in judicial custody could be taken as sufficient sentence and the accused be enlarged.

11. It is in the above background that we have been called upon to determine if the Accused is guilty of the offences alleged against him. We have gone Crl.A No.100345/2017 32 through the entire evidence on record on reappreciation of the same we find that

12. P.W.1 who is a distant relative of the accused, in his examination has stated that the deceased Laxmi is the wife of the accused, Sangamesh is the son and Sangeeta is the daughter. The witness has stated that, when he had gone to the Civil Hospital to see the deceased, the police took his signature, he was not a witness to the inquest, he has denied the contents of the statement said to be given by him. On being confronted with the photographs at Ex.P.3 showing himself and his mother, he admits that in the photograph he and his mother are seen, but he states that he does not know whose dead body is seen in the photographs. Hence, P.W.1 was treated as hostile and the prosecutor cross- examined P.W.1. He has denied all the suggestions put across and nothing much was elicited from Crl.A No.100345/2017 33 P.W.1 during the course of cross-examination to support the case of the prosecution.

13. P.W.2 in her examination-in-chief has stated that, the deceased Laxmi was her distant relative, she knows the accused, she states that the deceased Laxmi was the wife of the accused and Sangeeta and Sangamesh are the children of the accused and the deceased. She stated that, when she had gone to the Civil Hospital to see the dead body of the deceased, the police had taken photographs and LTM on the panchanama. No inquest panchanama was conducted in her presence, she denied her statement. The prosecutor sought permission of the Court to treat the witness as hostile, she was cross-examined but has denied all the suggestions which have been put across to her. Nothing much was elicited from her during the course of cross-examination.

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14. P.W.3 stated that, he knows the deceased Laxmi, Sangeeta and Sangamesh, as also Shreya, who is another daughter of the accused and deceased Laxmi. He has stated that the accused was working as a Mason, C.W.14 (P.W 12.) is the mother and C.W.15 (P.W 13) is the father of the accused. He states that, he does not know whether they were living in the same house or not. He has denied any knowledge of the incident, hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross-examination and nothing much was elicited during the course of cross- examination.

15. P.W.4, in his examination stated that he knows the accused, deceased Laxmi, Sangeeta and Sangamesh, as also Shreya, the other daughter of Crl.A No.100345/2017 35 the accused and the deceased. He denied any knowledge of the incident, hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross-examination and nothing much was elicited during the course of cross- examination.

16. P.W.5 denied that he was called to be a witness to any panchanama, denied that nothing was seized in his presence, hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross-examination and nothing much was elicited during the course of cross-examination. Crl.A No.100345/2017 36

17. P.W.6 in his examination-in-chief has stated that, he has been called to the house of C.W.10(PW.9) by the police when P.W.3, P.W.5, C.W.14(PW.12) and C.W.15(PW.13) were present, the spot panchanama was carried out in the first room as one entered the house of C.W.10(PW.9), M.O.1 to M.O.7 were seized by the police, after panchanama Ex.P.6 were prepared, contents were read over to him and thereafter he has affixed his signature. He has also identified Ex.P.7 and Ex.P.8 photographs. He has denied that the inquest panchanama of Sangamesh was held in his presence, hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross- examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination. In the cross- Crl.A No.100345/2017 37 examination by the counsel for the accused he has admitted that he is a panchayat member and the police enquired with him as to any offence which took place in his village. He admits that, he would be unable to give boundaries of the house of C.W.10(PW.9), no panchanama was prepared in his presence, he denied that he does not know the contents of the panchanama, he also denied that, no material objects were seized in his presence. He has stated that P.W.5 was present with him, thus disproving the statement made by P.W.5.

18. P.W.7 is a Doctor who received the requisitions for carrying out the postmortem of deceased Sangamesh, Laxmi and Sangeetha. Sangamesh was aged about 3 years, body was identified by C.W.26(PW.26) and Autopsy was conducted between 1.30 p.m. to 2.30 p.m. on 26.03.2015. He has opined that, the death is due to septicemia as Crl.A No.100345/2017 38 a result of 75-80 percent superficial to deep burn injuries sustained. He has identified the postmortem report examination report of the deceased Sangamesh as Ex.P.9.

19. He has also stated that he has conducted the postmortem examination of Laxmi Prakash Kudachi between 11.30 a.m. to 12.30 p.m. on 29.03.2015. He has certified that the cause of death is due to septicemia, as a result of 90 percent superficial to deep burn injuries sustained. He has identified the postmortem examination report of the deceased Laxmi as Ex.P.12.

20. He has further stated that he has received the requisition to carry out the postmortem of the deceased Sangeeta aged about 5 years and he conducted Autopsy between 5.30 p.m. to 6.30 p.m. on 11.04.2015. He has stated that the cause Crl.A No.100345/2017 39 of death is due to septicemia as a result of 50-55 percent superficial to deep burn injuries, he has identified the postmortem examination report as Ex.P.15.

21. During the course of cross-examination, he has denied that because the brain became congested, it has lost its working capacity. He has denied that he has not seen the dead body of Laxmi, Sangamesh and Sangeeta and or conducted their postmortem. This witness has stood the test of cross-examination and supported the case of the prosecution.

22. P.W.8 has deposed that he knows the accused, deceased Laxmi and their children Sangamesh and Sangeeta. He states that he does not know how Laxmi, Sangamesh and Sangeeta died. He has stated that the accused was living cordially with his Crl.A No.100345/2017 40 wife Laxmi and they neither quarreled nor assaulted the children. He has denied that he has taken Laxmi, Sangamesh and Sangeeta on 25.03.2015 in his Car to the hospital. He denied that, he has given any statement to the Investigating Officer. Hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross-examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, his statement is marked as Ex.P.18.

23. P.W.9 has deposed that the accused is the elder brother of her husband. She has admitted the relationship of the accused with the deceased Laxmi, Sangamesh and Sangeeta. She has stated Crl.A No.100345/2017 41 that since the accused was constructing a new house, the accused, deceased Laxmi and their children were temporarily living in the house of P.W.9. She has stated that the deceased died on account of the accidental burns suffered from a kerosene lamp. She has further stated that the accused was not harassing or ill-treating her or the children and she denied any knowledge of the incident taken between 24.03.2015 and 25.03.2015. Hence, the prosecutor sought permission to treat her as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross-examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, her statement is marked as Ex.P.19.

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24. In her cross-examination by the Counsel for the accused, she has admitted that in the portion of the room where the accused, deceased and the children were sleeping had a kitchen, firewood oven and a firewood stove and a kerosene lamp was kept lit at night.

25. P.W.10 in her examination-in-chief has stated that the deceased Laxmi was her daughter, accused was her husband and their marriage took place about 8 years ago. She has stated that the deceased suffered burnt injuries, accused was treating the deceased Laxmi well and not abusing her and children. She states that on 25.03.2015 she received a call from P.W.9 informing that the deceased Laxmi, Sangamesh and Sangeeta have suffered burnt injuries and have been taken to civil hospital, Belagavi. She has further stated that the deceased has never stated about the accused Crl.A No.100345/2017 43 harassing and ill-treating her. Hence, the prosecutor sought permission to treat her as hostile and on such permission, she was cross- examined. He has denied all the suggestions put across to her during the course of cross- examination and nothing much was elicited during the course of cross-examination, she has denied that she has given any statement to the Investigating Officer, her statement is marked as Ex.P.20. She has denied that she has falsely deposed to save the accused i.e., her son-in-law.

26. P.W.11 is the brother of the deceased in his examination-in-chief he has admitted the marriage between the accused and the deceased Laxmi and has also admitted the relationship of the accused with the children. He has stated that the deceased never told him anything about the accused quarrelling with her. He does not know how Laxmi Crl.A No.100345/2017 44 and the children died and how they suffered burn injuries. He denied that he had visited the VIMS Hospital to see his Sister. He has further stated that the police have not recorded his statement.

27. Hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, his statement is marked as Ex.P.23.

28. P.W.12 has deposed that the accused is her son and the deceased was her daughter-in-law. All of them were residing separately and cordially. She has further stated that the accused and the Crl.A No.100345/2017 45 deceased never quarreled. She has stated that deceased Laxmi, Sangamesh and Sangeeta died due to burn injuries. She along with P.W.9 and C.W.15(PW 13) had taken Laxmi and her two children to the hospital in the vehicle of P.W.8. She stated that she had not given any statement to the police. Hence, the prosecutor sought permission to treat her as hostile and on such permission, she was cross-examined. She has denied all the suggestions put across to her during the course of cross-examination and nothing much was elicited during the course of cross-examination, she has denied that she has given any statement to the Investigating Officer, her statement is marked as Ex.P.24.

29. P.W.13 has deposed that the accused is his son, deceased Laxmi was his daughter-in-law and they had three children. He has also stated that the Crl.A No.100345/2017 46 accused and the deceased Laxmi were leaving cordially and there were no quarrels between them. He has stated that he along with P.W.9 and P.W.12 took the deceased Laxmi and her two children to the Hospital in the vehicle of P.W.8. He has denied that, the police have recorded his statement.

30. Hence, the prosecutor sought permission to treat him as hostile and on such permission, he was cross-examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, his statement is marked as Ex.P.25.

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31. P.W.14 has stated that, he is the Section Officer at Hirebagewadi Section. As per the request of the Hirebagewadi Police, he has issued Ex.P.26 - certificate, dated 08.05.2015 stating that there was electricity supply in Bendigeri village on 25.03.2015 between 12.00 mid night to 6.30 a.m. During the course of cross-examination, he has stated that he has given the certificate on the basis of the Log Book in the Station and he has not done any spot inspection. He has denied the suggestion that he has given a false statement. This witness has supported the case of the prosecution.

32. P.W.15 has deposed that, he was the PDO of Bendigeri Panchayat and he has issued Ex.P.27 being the property Registrar extract of the house of P.W.13 Crl.A No.100345/2017 48

33. P.W.16 has deposed that, he is the Head Constable of APMC Police Station. He received the MLC from Civil Hospital, Belagavi on 25.03.2015 at 3.00 a.m. He immediately informed the Hirebagewadi Police Station. He identified the MLC Registrar as Ex.P.28. During the course of cross-examination, he has stated that the Civil Hospital comes within the jurisdiction of APMC Police Station , where there is an outpost located and two police staff would be there 24 hours of the day. The Hospital sent the MLC to the out post and not to Hirebagewadi police station. He denied that he has deposed falsely.

34. P.W.17 has deposed that she was the woman Assistant Sub-Inspector of Police in APMC Police Station. She received a message from the hospital on 29.03.2015 that Laxmi had expired in the early morning on that day. Hence, she has sent an E- mail to Police Inspector, Hirebagewadi police Crl.A No.100345/2017 49 station which is marked as Ex.P.29. During the course of cross-examination, she has spoken about the outpost in the Civil Hospital, Belagavi. She has denied that she is deposing falsely.

35. P.W.18 has stated that he knows the accused and that his house adjoins the house of the accused. He has admitted the relationship of the deceased Laxmi and their children with the accused and has further stated that the parents of the accused were living in the adjoining house. He has denied any quarrel between the accused and the deceased. He stated that he does not now how they died, he does not now any knowledge of the incident and that he has not given any statement to the Investigating officer.

36. Hence, the prosecutor sought permission to treat him as hostile and on such permission, he was Crl.A No.100345/2017 50 cross-examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, his statement is marked as Ex.P.31, 32 and 33.

37. P.W.19 has stated that his wife is the younger sister of the deceased Laxmi who had three children. He has denied any knowledge of the accused and the deceased having quarreled with each other. On 25.03.2015 he received a telephone call about Laxmi having suffered burn injuries and when he went to the house of the accused, he was informed that the Laxmi was shifted to BIMS Hospital, she did not tell him anything about the cause of the injuries. Hence, the prosecutor sought permission to treat him as Crl.A No.100345/2017 51 hostile and on such permission, he was cross- examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, the relevant portions of his statement is marked as Ex.P.34, 35, 36 and 37. Though he has admitted his signature on inquest panchanama at Ex.P.21, he has denied the contents and or his presence during the inquest. He has admitted his presence in the photographs at Ex.P.22. He has denied that he is deposing falsely.

38. P.W.20 has deposed that he is working as a Police Constable in Hirebagewadi Police Station. On 01.05.2015, he has carried 7 sealed articles to FSL, Bengaluru, delivered it to FSL on 02.05.2015. Crl.A No.100345/2017 52 In his cross-examination, he has denied that he has deposed falsely.

39. P.W.21 has stated that, he was working as Police Constable in Hirebagwadi Police Station. He has carried out the FIR to Court of JMFC, Belagavi on 25.03.2015. In his cross-examination, he has denied that he is deposing falsely.

40. P.W.22 has deposed that the accused is his neighbour, deceased Laxmi was his wife and Sangamesh, Sangeeta and Shreya were his children. He has stated that the parents of the accused were residing separately. Though he knows Laxmi, Sangamesh and Sangeeta have expired he does not know how they have expired since he was in a different village at that time. He has denied the knowledge of the incident. Hence, the prosecutor sought permission to treat him as Crl.A No.100345/2017 53 hostile and on such permission, he was cross- examined. He has denied all the suggestions put across to him during the course of cross- examination and nothing much was elicited during the course of cross-examination, he has denied that he has given any statement to the Investigating Officer, the relevant portion of his statement has been marked as Ex.P.41(a).

41. P.W.23 has deposed that, he is the Assistant Engineer and he has prepared map as per Ex.P.45. Though he was cross-examined he has supported the case of the prosecution.

42. P.W.24 has deposed that, he was the Tahashildar from 30.06.2014 to 12.08.2016. He received the requisition on 25.03.2015 from Hirebagewadi police station for recording the statement of the injured Laxmi. He went to the Civil Hospital, Crl.A No.100345/2017 54 Belagavi, met with the duty doctors enquired about the health condition of the victim and asked the doctors if she was in a fit condition to give a statement, on the Doctor stating that Laxmi was in a fit condition. He along with a case worker went to the injured and made enquires, he asked the questions and recorded her answers. On enquiry as to how she sustained injuries, she had replied that at about 12.30 a.m. her husband has came in an intoxicated condition, abused and assaulted her, poured two liters of petrol on her body and lit fire. When he asked her to show the injuries, she has shown the injuries on her stomach, chest, back, hands and thighs. She has stated that the incident took place in her husband's house. On asking the reason why her husband committed the offence, she has replied that during the night at 12.30 a.m., when she was sleeping with her children, her Crl.A No.100345/2017 55 husband came in an intoxicated condition, told her to sleep with him. But she replied that she is having her menstrual cycle and she will not come for two days. Hence, her husband scolded and assaulted her, brought the petrol kept for using in the wood cutting machine and poured on her body where she was sleeping, lit fire, due to which she and her children sustained burn injuries. During the course of cross-examination, he has denied all suggestions. He has stated that when the dying declaration was recorded, the relatives of the patient were sent out. He has denied that the police, nurse and the relatives were present. He has clearly stated that the burn injuries were due to the act of the accused. He has denied all other suggestions. This witness has supported the case of the prosecution.

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43. P.W.25 has stated that, he is the Senior Resident in General Surgery, BIMS Hospital, Belagavi. On 25.03.2015 at about 1.55 a.m., the patient Laxmi was brought to the causality by the relatives with the history of burn injuries. He along with two other Doctors gave medical treatment. On 25.03.2015 they received a requisition to give an opinion if the patient was in a fit condition to give a statement. He examined the patient at 10.30 a.m., the patient was conscious, oriented, her GCS was 15/15 and her pulse rate was 86 per minute. He asked her questions, which she answered properly. Accordingly, he endorsed that she was fit to record her statement. He has stated that he has brought the case file of deceased Laxmi. The entire file was produced and marked as Ex.P.50. He has deposed that on 25.03.2015, at 11.15 a.m., the Taluka Executive Magistrate came to the Hospital again Crl.A No.100345/2017 57 and enquired whether she was in a fit condition to give statement and on that basis recorded the statement of the deceased. He has stated that on 29.03.2015 at 4.40 a.m., the deceased Laxmi died in the burns ward. In the cross-examination he has denied the suggestions that he has not treated the deceased Laxmi and that she was not in a fit condition to give statement. Though he has admitted that the health condition of the patient was critical from the day one, he stated that she was in a fit condition to give statement.

44. P.W.26 is the Head Constable, who has taken the body for postmortem and after the postmortem handed it over to the family.

45. P.W.27 is the Head Constable who recorded the statement of the victim Laxmi and took her thumb impression. He has identified his statement as Crl.A No.100345/2017 58 Ex.P.40. During the course of cross-examination, he has stated that he has spoken to the patient but the patient was not speaking properly. He has stated that the victim had informed him that the accused has poured kerosene on her and her children. He has denied that he has not recorded the statement of the deceased.

46. P.W.28 has stated that he had taken up further investigation from the Head Constable in Crime No.64/2015. He has conducted the spot mahazar in the presence of witnesses. He has seized M.O.1 to M.O.7 and has arrested the accused on the same day from Bendigeri bus stop and produced him before the jurisdictional magistrate. He has stated that he has recorded the statement of Laxmi and C.W.10 to C.W.15. He has sent the request to the Chief Medical Officer, Civil Hospital, recorded the statement of P.W.3, P.W.4, P.W.8 to Crl.A No.100345/2017 59 P.W.13, P.W.18, P.W.19 and P.W.22. During the course of the cross-examination, he denied all the suggestions.

47. P.W.29 has stated that, he was the Medical officer in BIMS, Belagavi. He has checked the health condition of the accused. He has found burn injuries on the fore-arm of the right arm and on right thigh. During the course of cross-examination he has admitted that such injuries may happen when a person tries to put out a fire.

48. P.W.30 is the Circle Inspector of the Hirebagewadi, who has deposed that he has taken up the investigation, drawn inquest panchanama and sent the body for the postmortem. He has recorded the further statement of C.W.11 to C.W.16, C.W.5 to C.W.7, C.W.9 and C.W.10. On receiving the information of death of Laxmi, he has carried out Crl.A No.100345/2017 60 the inquest panchanama. On receiving the information of death of Sangeeta, he has carried out inquest panchanama at Ex.P.21. He has sent the requisition to the PDO, HESCOM, obtained the dying declaration from the Tahashildar, obtained postmortem report, etc., During the course of cross-examination he has denied that he has not carried any investigation or that he has not visited the scene of crime or that the fire happened due to the accident.

49. We are mindful of the fact that the above appeal arises out of an order of acquittal and as such normally this Court on appeal would be very reluctant to interfere with such order of acquittal. However, in exceptional cases and under compelling circumstances, it would be our duty to interfere and reverse the order of acquittal, where we find the same to be perverse and the evidence Crl.A No.100345/2017 61 on record has not been considered properly by the trial Court. This being so, if the finding of the trial Court is arrived at by ignoring or excluding the relevant material or by taking into consideration irrelevant/inadmissible material.

50. Having gone through the evidence on record and appreciated the same, we are of the considered opinion that the trial Court has refused to take into considering the dying declaration as also the other evidence on record which has resulted in injustice to the deceased and her family. Irrespective of the family members of the deceased having turned hostile and not supporting the case of the prosecution, we are of the considered opinion that despite some of the witnesses have turned hostile, if there is sufficient evidence on record to establish the guilt of the accused beyond reasonable doubt, then the accused would be liable to be convicted as Crl.A No.100345/2017 62 regards the offences which have been proved against the said accused.

51. From the above evidence on record, it is clear that the incident occurred on 25.03.2015 at around 00.30 hours. The material witnesses who are the relatives of the deceased Laxmi namely P.W.1, P.W.2, P.W.10 being the father and P.W.11 being the sister of Laxmi and P.W.19 being the brother- in-law of the deceased Laxmi, have categorically stated that they do not know how Laxmi and the children suffered injuries, they have stated that the relationship between the deceased Laxmi and the accused were proper and cordial, they are not aware of any quarrels between the deceased Laxmi and the accused. The deceased has not informed any of them about any harassment or ill-treatment at the hands of the accused.

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52. P.W.9 is the sister-in-law of the accused. P.W.12 is the mother of the accused. P.W.13 is the father of the accused who has also deposed that the deceased Laxmi and the accused were living cordially and there was no quarrel. They do not know how the incident occurred and that the fire resulted in the burn injuries to Laxmi and the children, they had denied giving any statement to the Investigating Officer.

53. P.W.1, P.W.2, P.W.3, P.W.4, P.W.6, P.W.8, P.W.18 and P.W.22 are the neighbours who have also stated that the relationship between the deceased and the accused was cordial and there was no quarrel. They have also stated that, they did not know how the incident took place.

54. The witnesses to the spot mahazar and inquest namely P.W.1 and P.W.2 have denied that the Crl.A No.100345/2017 64 mahazars and or the inquest were conducted in their presence though they have admitted their signatures. All the material witnesses have denied the incidents, all of them were treated as hostile and nothing much was elicited from them during the course of cross-examination.

55. Though P.W.8 in whose car Laxmi and children were taken to the hospital has denied that they were taken in his car to the hospital. P.W.13 who is the father of the accused has stated that he along with P.W.9 and P.W.12 took Laxmi and her children to the hospital in the vehicle of P.W.8.

56. P.W.12 who is the mother of the accused has also stated that she along with P.W.9 and P.W.13 had taken Laxmi and the children to the hospital in the vehicle of P.W.8. It is clear that, even among the witnesses who have been treated as hostile there Crl.A No.100345/2017 65 is a contradiction in the evidence given by them. The reasons for having turned hostile is not too far, they have tried to save the accused who is related to them, Unmindful of the fact that there are three deaths which have occurred namely that of Laxmi and two minor children.

57. The Hon'ble Apex Court has dealt with the aspect of hostile witnesses in the case of Ramesh and others Vs. the State of Hariyana, reported in (2017) 1 SCC 529. The observations made by the Apex Court at paragraph Nos.39 to 44 would be relevant which are reproduced hereunder for easy reference:

39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom Crl.A No.100345/2017 66 while deposing in the Court and justifiably so.

However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.

40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar[7], this Court observed as under:

"31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.

41. Likewise, in Zahira Habibullah v. State of Gujarat[8], this Court highlighted the problem with following observations:

"40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several Crl.A No.100345/2017 67 factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer... there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.

41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat.

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Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies."

42. Likewise, in Sakshi v. Union of India[9], the menace of witnesses turning hostile was again described in the following words:

"32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross- examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross- examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of section 327 Cr.P.C. should also apply in Crl.A No.100345/2017 69 inquiry or trial of offences under Section 354 and 377 IPC."

43. In State v. Sanjeev Nanda [10], the Court felt constrained in reiterating the growing disturbing trend:

"99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.

100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr., (AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.

101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Crl.A No.100345/2017 70 Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat, AIR 2006 SC 1367, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."

44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:

"(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness."

58. The reasons for the witnesses turning hostile is as mentioned in paragraph No.44 of the above judgment. Though the threat and intimidation has Crl.A No.100345/2017 71 been sought to be addressed by the Witnesses Protection Scheme, unfortunately, the availability of such a scheme is not made known to the witnesses, it would therefore be required of the Investigating officer to inform all witnesses in a criminal matter of the availability of the Witness Protection Scheme and guide them in relation thereto or guide them to a person/officer who can render them the necessary assistance in that regard. The leaned Additional SPP and the Additional Registrar General of this court are directed to forward a copy of this order to the Director-General of Police for the State of Karnataka.

59. Despite the Apex Court having observed way back in the year 2017 about the non-existence of any clear cut existence to check hostility of witnesses, no action in this regard has been taken by the Crl.A No.100345/2017 72 Legislature. It is high time that necessary action is taken. There would be no purpose served by the registration of crime, the investigation by the officers and the trial being conducted if this aspect is not addressed at the earliest. In this view of the matter, we deem it fit to request the Law Commission of India, as also the Law Commission of the State of Karnataka to look into the matter and make their suggestions regarding the witnesses turning hostile and how to deal with such a situation. The Additional Registrar General of this court is directed to forward a copy of this order to the Law Commission of India, as also to the Law Commission of the State of Karnataka.

60. In the present case, the Statements of the witnesses being false is established by the contradiction as afore stated. Apart from this, the witnesses have sought to state as if that the Crl.A No.100345/2017 73 deceased died on account of accidental burns suffered from a kerosene lamp.

61. P.W.7 who is the Doctor who has carried out the postmortem examination of the deceased Laxmi and two children has stated about the nature of burns which have been suffered by them. In our considered opinion it is not possible for kerosene lamp to cause that kind of burns. P.W.14 has deposed that there was electricity connection to the house and there was electrical supply between 12.00 midnight and 6.30 a.m. on 08.05.2015. Thus, there was no need for use of a kerosene lamp when there was electric power available.

62. The Apex Court while dealing with the dying declaration has held as under:

63. The Apex Court in the case of Ashabai and another Vs. State of Maharashtra, reported in Crl.A No.100345/2017 74 2013 (2) SCC 224, more particularly paragraph Nos.15, 16, 19 and 20 thereof, which are reproduced hereunder for easy reference:

"15. About the evidentiary value of the dying declaration of the deceased, it is relevant to refer to Section 32(1) of the Evidence Act, 1872, which reads as under:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant .- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death .-

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. It is clear from the above provision that the statement made by the deceased by way of Crl.A No.100345/2017 75 a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.

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16. We have already noted that in the present case, the prosecution relied on four dying declarations of the deceased. We have also noted that at the time of recording of these statements, medical officers on duty had certified that the deceased was fully conscious and was in a fit state of mind to make the same. As a matter of fact, the deceased has given proper replies to the questions put to her by various authorities. Further, it is not in dispute that the incident occurred on 5-3-2003 and she sustained 54% burns and, ultimately, she died only on 18-4-2003. In other words, she survived for about 1,1/2 (one and-a-half) months which speaks for the fitness of the declarant to make a statement. The persons who recorded the four dying declarations were examined as PWs 14, 7 and 6 and they were also cross-examined about the statement made by the deceased and recorded by them. In such circumstances, we fully endorse the view expressed by the trial court and affirmed by the High Court about the acceptability of four dying declarations implicating the mother-in-law and sisters-in-law (the appellants herein).

19. Apart from the above witnesses, the prosecution has also examined the doctors who certified her fitness while making the statement, the doctor who conducted her post-mortem and IOs, who completed the investigation and filed charge-sheet.

20. The above analysis clearly shows that the deceased was in a fit state of mind to make dying declarations and her statements in those dying declarations are consistent and truthful. In addition to the same, the prosecution also examined PWs 1, 2 and 11 as well as the doctors, IOs, and other witnesses in support of their claim. We do not find any infirmity in the order of conviction and sentence recorded by the trial Judge and affirmed by the High Court."

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64. The Apex Court in the case of Laxman Vs. State of Maharashtra, reported in AIR 2002 SC 2973 more particularly paragraph No.3, 4 and 5 thereof, which are reproduced hereunder for easy reference:

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses Crl.A No.100345/2017 78 state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or has to be attached to such statement necessarily depends on the facts and circumstances of particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and others v. State of Andhra Pradesh, 1999 (7) SCC 695 the dying declaration in question Crl.A No.100345/2017 79 had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and another v. State of Gujarat, 1999 (9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander v. State of Punjab, 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

5. The court also in the aforesaid case relied upon the decision of this Court in Harjeet Kaur v. State of Punjab, 1999 (6) SCC 545 case wherein the magistrate in his evidence had stated that he Crl.A No.100345/2017 80 had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and others v. State of Andhra Pradesh, 1999 (7) SCC 695 to the effect that "...............in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka and others v. State of Andhra Pradesh, 1999 (7) SCC 695 must be held to be not correctly and we affirm the law laid down by this in Koli Chunilal Savji and another v. State Gujarat, 1999 (9) SCC 562 case."

65. The Apex Court in the case of Lakhan Vs. State of Madhya Pradesh, reported in 2010 (8) SCC 514, more particularly paragraph Nos.9, 10, 12, Crl.A No.100345/2017 81 16, 21, which are reproduced hereunder for easy reference:

9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as "the Evidence Act") as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-

examined. Such statements themselves are relevant facts in certain cases.

10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. 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 must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief Crl.A No.100345/2017 82 statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.

6. In Sher Singh v. State of Punjab, a case of bride burning, three dying declarations had been recorded. In the first dying declaration, the deceased had denied the role of the accused persons. In the second dying declaration the deceased attributed a role to the accused but the said declaration did not contain the certificate of the doctor that the deceased was in a fit state of mind to make a declaration, however, the Magistrate, who recorded the declaration, certified that the deceased was in a conscious state of mind and was in a position to make the statement to him. The third dying declaration was recorded by a police officer after the doctor certified that she was in a fit state of mind to give the statement. This Court held that the conviction could be based on the third dying declaration as it was consistent with the second dying declaration and the oral dying declaration made to her uncle, though with some inconsistencies. First declaration was made immediately after she was admitted in the hospital and was under threat and duress by her mother-in- law that she would be admitted in hospital only if she would give a statement in favour of the accused persons.

21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/ prompting; it can be the sole basis for recording conviction. In such an eventuality no Crl.A No.100345/2017 83 corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

66. The case of the prosecution is also strengthened by the dying declaration of the deceased. P.W.24 who is the Tahsildar has stated about he having received a requisition on 25.03.2015, enquired with the Duty Doctors about the fitness of the deceased Laxmi to give her statement in pursuance thereof, he has recorded her statement in a question and answer format. He has stated that the deceased was in a proper state of mind to give answers and she has answered properly. In the dying declaration it is categorically stated by Crl.A No.100345/2017 84 the deceased that at night on 12.30 a.m., when she was sleeping with her children, her husband came in an intoxicated condition, told her to sleep with him, however, she replied that she is having her menstrual cycle and she will not be in a position to do the same for two more days, her husband scolded and assaulted her and brought the petrol kept in another room for using in the wood cutting machine poured on her body and the bodies of the children while there were sleeping and set them on fire due to which they have sustained the burn injuries and she has shown her burn injuries on her stomach, chest, back, hands and thighs.

67. P.W.25 being the Senior Resident in General Surgery, BIMS Hospital, Belagavi, has deposed that the deceased Laxmi had been brought into the causality by the relatives of the deceased, on Crl.A No.100345/2017 85 receiving a requisition as regards the fitness of the patient to give statement, he has examined her at 10.30 a.m. on 25.03.2015 when the patient was conscious and oriented, her GCS was 15/15 and pulse rate was 86 per minute. He has endorsed and certified that the deceased Laxmi was fit to give her statement. He has also brought the entire case file of the deceased Laxmi which was examined by the Court and marked as Ex.P.50. He has stated that subsequently P.W.24 the Taluka Executive Magistrate came and recorded her statement.

68. P.W.27 is another Head Constable who recorded the statement of Laxmi pursuant to the certification of her fitness at Ex.P.40. The Statement at Ex.P.40 is more or less identical to the dying declaration of the deceased Laxmi. Crl.A No.100345/2017 86

69. The other official witnesses have deposed as regards carrying of the FIR to the Court, carrying the dead body for the postmortem examination, recording the statements of the witnesses, carrying out panchanama, etc., which are borne out by the records.

70. The above evidence on record namely the dying declaration, certification by the Doctor, the deposition by the Taluka Executive Magistrate who had recorded the dying declaration and the deposition of P.W.27, the Head Constable who has recorded the statement of the deceased Laxmi are credible.

71. The dying declaration and the statements at Ex.P.40 are corroborated by the other evidence on record including the medical evidence. Crl.A No.100345/2017 87

72. The dying declaration of the deceased is very clear.

The deceased who is the wife of the accused has in categorical terms in the dying declaration recorded by the Taluka Executive Magistrate implicates the accused in the death of the deceased and her two minor children. Applying the decision of the Apex Court in Ashabai's case, Laxman's case and Lakhan's case, the relevant paragraphs having been reproduced her in above, it is clear that in the present case, the requirements laid down by the Apex Court having been satisfied. The deceased was fit and competent to give a statement, the same was recorded by the Taluka Executive Magistrate and this fact would have established the guilt of the accused in no uncertain terms. The evidence on record leaves us with no other conclusion, but the conclusion that the death of the Crl.A No.100345/2017 88 deceased and the two minor children have been murdered by the accused.

73. Though Sri. Vittal S. Teli, learned counsel for the respondent has sought to contend that since the accused was in an inebriated condition under the influence of alcohol, he did not know what he was doing and therefore, the actions on the part of the accused come under the general exceptions in the IPC. Section 85 and 86 of the IPC are reproduced hereunder for easy reference:

85. Act of a person incapable of judgment by reason of intoxication caused against his will- Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

86. Offence requiring a particular intent or knowledge committed by one who is intoxicated - In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the Crl.A No.100345/2017 89 act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will."

74. By relying on the above, he submitted that, even if this court were to come to a conclusion that the accused is guilty of having caused the death of the deceased and her two children by applying the exception under Sections 85 & 86, it would be Section 304, which would be attracted for the purpose of determination of punishment and Section 302 of IPC. He further submits that, it would be part-II of Section 304 which would be applicable, since the accused did not know that his action would cause a death and further more that he had no intention to cause the death. Crl.A No.100345/2017 90

75. Sections 85 & 86 of the IPC which have been reproduced herein above are clear in that, when a person is incapable of judgment by the reason of intoxication or when any offence requires a particular intent or knowledge when committed by a person intoxicated, the same would not be an offence. However, both the sections required that the thing that intoxicated him was administered to him without his knowledge or against his will. In the present case, there is no evidence adduced by the accused to establish that he was intoxicated on account of some one administering the intoxicant without his knowledge or against his will. Further more, no such defence had been taken up by the accused in the trial Court. Hence, we are unable to accept the submission of Sri. Vittal S. Teli that in view of the applicability of Sections 85 & 86 of the IPC, no offence is committed or that the same Crl.A No.100345/2017 91 would come under any of the exceptions under Section 300, requiring the application of Section 304 of the IPC in order to determine the punishment.

76. In order for an accused to seek for application of Section 85 and 86 of the IPC, the accused ought to have taken the same as a defence during the course of trial, the same cannot be for the first time set up in an appeal. If such a defence is taken, the accused is required to establish that the intoxicant was administered to him without his knowledge or against his will. A self induced intoxication cannot come within the ambit and purview of Sections 85 & 86 of IPC.

77. Section 304 would also not be attracted in the present case, since if Sections 85 and 86 were applicable then no offence would have been Crl.A No.100345/2017 92 committed requiring no punishment. Section 304 would come into operation only if any exception as provided to Section 300 of the IPC is invoked and established. In the present case, no such exception has been invoked nor is any such exception capable of being invoked. None of the five exceptions to Section 300 are applicable. The intoxication is not an exception to an offence under Section 300.

78. In the above circumstances, we are of the considered view that the evidence on record implicates the complicity of the accused in the crime having been committed. The deceased while giving her statement on her death-bed was of the fervent hope that justice would be rendered to her and her children. There was no reason as such to implicate her husband if not for him having carried out the said acts.

Crl.A No.100345/2017

79. For all the aforesaid reasons, we are of the opinion that the Judgment of the trial Court is required to be reversed and as such is reversed. We pass the following:

ORDER i. The appeal is allowed.

      ii.    The   Judgment              dated   04.03.2017

             passed     by    the        Principal    Sessions

             Judge,     Belagavi         in   Sessions       Case

             No.267/2015 is set aside.

      iii.   The   accused      is       convicted     for    the

offence punishable under Sections 302 and 504 for having committed the murder of the deceased Laxmi, Sangeetha and Sangamesh (three deaths).

Crl.A No.100345/2017 94

iv. The Additional Registrar General of this Bench is directed to do the needful, in terms of paragraph No.58 and 59 of this Judgment.

Sd/-

JUDGE Sd/-

JUDGE *Svh/-

Crl.A No.100345/2017 95 Crl.A. No.100345/2017

SGRJ & JMKJ:

23.12.2021 ORDER OF SENTENCE

1. In pursuance of the order dated 20.12.2021, the presence of the accused is secured. He has been produced by Sri.V.A.Nikkam, ASI and Head Constable 2085-

Sri.S.B.Hegadannavar of Hirebagewadi Police Station.

2. Heard the accused, the counsel for the accused and the learned Additional SPP regarding sentence.

3. Sri.Vitthal S Teli, learned counsel appearing for the respondent/accused once again submits that the incident occurred in the heat of moment. The accused has minor daughter and aged mother who need to be look after Crl.A No.100345/2017 96 and as such he submits that a lenient view be taken and minimum sentence be awarded.

4. Sri.V.M.Banakar, learned Additional SPP appearing for the State submits that considering three deaths having occurred, maximum sentence may be awarded.

5. The accused has been convicted for the offence punishable under Sections 302 and 504 for having committed the murder of the deceased Laxmi, Sangeetha and Sangamesh (three deaths) vide judgment dated 20.12.2021.

6. Taking into consideration the submissions made, we pass the following order of sentence.

i. The accused shall undergo life imprisonment and shall also pay fine of Rs.10,000/- for the Crl.A No.100345/2017 97 offence punishable under Section 302 of IPC. In default thereof, he shall undergo simple imprisonment of 1 year.

ii. The accused shall undergo simple imprisonment for two years and shall also pay fine of Rs.5,000/- for the offence punishable under Section 504 of IPC. In default thereof, he shall undergo simple imprisonment of 6 months.

7. All the substantive sentences shall run concurrently.

8. 50% of the fine amount shall be recovered and deposited in the name of the minor daughter of the deceased.

9. The minor daughter shall also be entitled to make necessary application for compensation under Section 357A of Cr.P.C. for victim compensation, if not already made. Which shall be disposed of by the District Legal Crl.A No.100345/2017 98 Services Authority within a period of three months from the date of this order, if not already done.

10. The accused shall also be entitled for set off of the period spent in judicial custody.

11. Bail bonds, if any, stand cancelled. Issue conviction warrant.

12. Copy of the judgment of conviction and order of sentence shall be furnished to the accused free of cost forthwith, under acknowledgment.

Sd/-

JUDGE Sd/-

JUDGE sh

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