Harish vs The State Of Karnataka on 23 December, 2021

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Karnataka High Court

Harish vs The State Of Karnataka on 23 December, 2021

Bench: G. Narendar

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER, 2021

                           PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                                AND

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

           CRIMINAL APPEAL NO.1286 OF 2016

BETWEEN:

Harish,
S/o. Ningappa,
Aged about 44 years,
R/o Chitrahalli Village,
Holalkere Taluk,
Chitradurga District-577 526.
                                                     ...Appellant
(By Sri Javeed S., Advocate)

AND:

The State of Karnataka
By State by Holalkere P.S.,
Chitradurga-577 526
Represented by Special Public Prosecutor
High Court of Karnataka
                                                  ...Respondent

(By Sri Vijayakumar Majage, Addl.SPP)

      This Criminal Appeal is filed under Section 374 (2) of the
Code of Criminal Procedure, praying to set aside the judgment of
conviction dated 27th June, 2016 and Order of sentence dated
                               2




29th June, 2016 passed by the Principal District and Sessions
Judge, Chitradurga in SC No.64 of 2014 convicting the
appellant/accused for the offence punishable under Sections
498(A) and 302 of IPC.

      In this appeal arguments being heard, judgment reserved,
coming on "Pronouncement of Orders" this day, INDIRESH J.,
delivered the following:

                       JUDGMENT

This appeal is preferred by the accused, assailing the judgment of conviction dated 27th June, 2016 and order of sentence dated 29th June, 2016 on the file of the Principal District and Sessions Judge, Chitradurga in SC No.64 of 2014, convicting the accused to undergo imprisonment for life for the offence punishable under Section 302 of Indian Penal Code and to pay fine of Rs.20,000/-; in default to pay the fine, accused shall further undergo simple imprisonment for a period of three months. Further, the accused is sentenced to undergo simple imprisonment for a period of two years for the offences punishable under Section 498-A Indian Penal Code and to pay fine of Rs.10,000/-.

I. BRIEF FACTS:

2. It is the case of the prosecution that, Harish (accused) and Smt. Manjula (deceased) are husband and wife and they had two children by name Disha and Prajwal. Kum. Disha (PW13) is residing with the accused at Chitrahalli Village, and another child-Prajwal, is residing with his maternal grandparents at Godabanahal Village, Chitradurga Taluk. It is further stated that the accused was a drunkard and in an inebriated state, used to ill-treat the deceased physically, mentally and was harassing by pestering his wife to bring gold chain and bangles as dowry.

It is further stated that, since she refused to adhere to the demands of accused, his ill-treatment continued till her death.

On 10th January, 2014, at about 3.00 pm, deceased and her daughter (PW13) were at home, and at that time, accused came home in a drunken state and picked up quarrel with the deceased for not satisfying the dowry and in that regard there was altercation between the deceased and accused, and as such, accused assaulted the deceased, poured kerosene on her body, set fire to her and as a result of the same, deceased sustained burn injuries and in the meanwhile, accused left the house by 4 closing the door. Immediately the deceased, in order to save herself, came out from the house and extinguished fire with the help of water. Thereafter, nearby public, took the victim to the Government Hospital for immediate treatment, however, she succumbed to injuries on 12th January, 2014. Before her demise, she gave dying declaration stating that her husband had poured kerosene and set fire to her and the same was recorded by PW12 on 10th January, 2014. On the basis of the same, police registered FIR in Crime No.11 of 2014 for the offences punishable under Section 498-A, 307 and 302 of Indian Penal Code and FIR was sent to the jurisdictional Court. PW20- Investigation Officer, visited the spot and drawn up pachanama before the panchas as per Exhibit P2 and seized material objects from the house of the accused under panchanama Exhibit-P21, arrested the accused and produced before the competent court.

As the offence was exclusively triable by the Sessions Judge, the case was committed to the Sessions Court. In order to prove the guilt of the accused, the Prosecution has examined witnesses as PW1 to PW20 and got marked 24 documents as per Exhibits P1 to P24 and marked material objects as per MO1 to MO4.

After completion of evidence on the side of Prosecution, charge-

sheet was filed by PW19. The statement of the accused has been recorded as contemplated under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances against him and also the case set up by the prosecution.

3. The Sessions Judge, upon considering the oral and documentary evidence on record, has recorded a finding that the prosecution has proved that on 10th January, 2014 at about 3.00 pm, the accused picked up quarrel with his wife as he is not satisfied with the dowry given by her parents and as such, accused poured kerosene on her and lit fire and as a result, the said Manjula, died due to burn injuries and thereby, the accused committed murder of Manjula, and committed offence punishable under Section 498-A and 302 of Indian Penal Code.

Accordingly, the Sessions Judge, by the impugned judgment of conviction dated 27th June, 2016 and by order of sentence dated 29th June, 2016 convicted the accused and sentenced the accused to undergo imprisonment for life and to pay fine of 6 Rs.20,000/-; in default of payment of fine to undergo a simple imprisonment for a period of three months for the offence punishable under Section 302 of the Indian Penal Code and further the accused is sentenced to undergo simple imprisonment for a period of two years for the offence punishable under Section 498-A of Indian Penal Code and to pay fine of Rs.10,000/-. Being aggrieved by the impugned judgment of conviction and order of sentence passed in SC No.64 of 2014 by the Principal District and Sessions Judge Chitradurga, the present appeal is preferred by the appellant-accused.

4. We have heard Sri Javeed S., learned counsel appearing for the appellant-accused and Sri K Nageshwarappa, learned High Court Government Pleader, appearing for the respondent-State.

II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL APPEARING FOR THE APPELLANT :

5. Sri Javeed, learned counsel appearing for the appellant-accused contended that the learned Sessions Judge, solely based on the evidence of PW13, convicted the accused despite failure on the part of the Prosecution to prove the 7 involvement of the accused. Inviting the attention of the Court to the finding recorded by the Sessions Judge, he submitted that the entire case of prosecution revolves around the evidence of PW13, who has been considered as the eye-witness to the incident, however, the learned Sessions Judge has not properly appreciated the evidence of PW13 and therefore, the impugned judgment of conviction and order of sentence is contrary to the facts on hand. He further contended that, PW1 and PW2 are the witnesses to inquest Mahazar and have become hostile to the prosecution and that apart, PW8, PW9 and PW10, who are the residents of Chitrahalli village, also become hostile to the prosecution and in that view of the matter, learned Sessions Judge, ought to have acquitted the appellant-accused. He further contended that marriage between the deceased and accused is an arranged marriage and the relationship between them was cordial and therefore, accepting of dying declaration, by the learned Sessions Judge is without any basis. Inviting the attention of the Court to the suit filed by the deceased, against accused in Original Suit.No.3 of 2010 seeking maintenance, 8 would establish the civil dispute between them and the said aspect has been ignored, by the learned Sessions Judge.

6. He further contended that PW13 is aged about 9 years and was six years at the time of the incident and was studying in first standard and in this regard, the prosecution, failed to produce cogent material to prove the age of the PW13 and his evidence do not corroborate the involvement of the accused. He further contended that statement of PW13 was recorded on 13th January, 2014 and said statement was recorded after three days of the incident and there would be chances of engineering and tutoring and therefore, same cannot be basis to convict the accused.

7. Nextly, Sri Javeed contended that deceased was not fit to give dying declaration, on account of the severe burn injuries and the mental status of the deceased was not properly explained by the prosecution with regard to ability of recording the dying declaration and therefore, he categorically argued that the dying declaration (Ex.P9) is a created document to punish the accused and therefore, sought for setting aside the 9 impugned judgment of conviction and order of sentence.

Emphasising, with regard to the burn injuries inflicted on the deceased, Sri Javeed, invited the attention of the Court to the evidence of the Doctor-PW11 and submitted that the deceased sustained injuries to an extent of 80 to 83% and therefore, he questioned validity of the dying declaration itself. He further contended that, except official and interested witnesses, no independent witness have supported the case of the prosecution.

Referring, particularly to the evidence of PW13, Sri Javeed argued that the prosecution utterly failed to prove the involvement of the accused in the alleged incident and the said aspect of the matter was brushed aside by the learned Sessions Judge, which requires to be interfered with in this appeal and accordingly, he sought to allow the appeal by setting aside the impugned judgment of conviction and order of sentence.

8. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the State, vehemently contended that the impugned judgment of conviction and order of sentence is based on the evidentiary value, which cannot be altered in this 10 appeal. Referring to contents of Exhibit P9-dying declaration, he argued that the prosecution has established the guilt of the accused. Refuting the contention of Sri Javeed, learned Additional State Public Prosecutor contended that the dying declaration, was drawn as per the provisions contemplated under Section 32 of the Indian Evidence Act, and same was corroborated through the evidence of the Doctor and therefore, he sought for dismissal of the appeal.

IV. POINTS FOR DETERMINATION:

9. In view of the aforementioned rival contentions urged by the learned counsel appearing for the parties, points that arise for our consideration in this appeal are:

1. Whether the learned Sessions Judge is justified in convicting the appellant-accused to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and to pay fine of Rs.20,000/-; in default to pay the fine, accused shall further undergo simple imprisonment for a period of three months;

further, sentencing the accused to undergo simple imprisonment for a period of two years for the offences punishable under Section 498-A Indian Penal Code and to pay fine of Rs.10,000/-?

2. Whether the impugned judgment of conviction and order of sentence, call for interference in this appeal?

V. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:

10. In order to re-appreciate the entire evidence on record, including the oral and documentary evidence, it is relevant to consider the evidence of the prosecution witnesses and the circumstances relied upon.

11. PW1-Parameshwarappa is a panch witness to the inquest report. He has deposed he is not aware as to whether the accused poured kerosene on the deceased. He has signed the inquest report (Exhibit P1). The prosecution, considered PW1 as hostile witness and accordingly cross-examined him. In the cross-examination he has deposed that at the time of the 12 incident, accused was at his land and he was brought to the place of incident by someone on the motorcycle. He further deposed that, at the time of the incident, Disha (PW13) has gone outside to bring Milk. He further deposed that the deceased was admitted to the Hospital by the accused and she was not in a position to speak and had burns in an extent of 75%.

12. PW2-Nagaraja, the panch witness to Exhibit P1-

Inquest report, has also deposed in the lines of PW1.

13. PW3-Yashodhara is the cousin brother of deceased-

Manjula and he is a witness to Exhibit P1-inquest report. He deposed that the deceased was in a fit state of mind to give dying declaration. In the cross-examination he admits that on the date of incident, he was not present at the spot and further deposed that he came to Hospital at around 10.00 am, on the date of death of Manjula and at that time, himself, CW5 and CW6 were present in the Hospital. He also endorsed the statement given by the deceased to CW5 and CW6.

14. PW4-Shekaraiah, is the father of the deceased. He deposed that the accused was harassing his daughter for dowry 13 and used to assault her under the influence of alcohol. He also deposed that, he along with the elders, advised the accused, not to ill-treat the deceased. He also deposed that on three to four occasions, he along with the deceased, lodged complaint with the Police and at that time, Holalkere Police, summoned the accused and advised him to lead a happy life with the deceased, however, the accused did not listen to the words of the Police.

He further deposed that on the date of incident, between 3.30 and 4.00 pm, the accused poured kerosene on the deceased and lit fire. He received call through phone and thereafter, visited, the Hospital and found the injuries on the body of his daughter.

He further, deposed that her husband-accused is the cause for burn injuries. In the cross-examination, he has deposed that, the deceased was residing at Chitrahalli with her husband from the date of marriage. It is also stated that deceased had filed Original Suit No.3 of 2010 against the accused seeking maintenance, however, deceased was visiting the house of the accused. He also deposed that there is a family dispute with regard to division of properties between the accused and his sisters. He further deposed that he had conversation with CW6 14 and CW7 and further stated that deceased was in a fit state of mind to give statement.

15. PW5-Kantharaj, is the resident of Chitrahalli, who deposed that on the date of incident, he noticed that the deceased came out from the house with burn injuries and she fell into the water tank and thereafter, he called the ambulance, and she was taken to the Hospital. He is a panch witness to Exhibit P2. The prosecution treated him as hostile and cross-

examined him. He deposed that police took the kerosene Can from the house of the neighbour and seized the same as MO1.

He further deposed that MO2 was inside the room and police brought the part of MO2. He has also deposed that on the date of incident, the accused was not at home and only deceased was present at home.

16. PW6-Shivakumar S., is the brother of deceased. He deposed that PW13 was residing with her parents. He has also deposed that they paid dowry to the accused. He further deposed that the accused was a habitual drunkard and was harassing the deceased for bringing dowry. He further deposed 15 that complaint was lodged with Police against accused and thereafter, police have advised him to lead a happy life with the deceased. He also stated about the filing of the suit in Original Suit No.3 of 2010 by the deceased against the accused relating to property dispute, however, deceased was residing with the accused. On 10th January, 2014, he came to know from his father-PW4 about the incident.

17. PW7-Mahadevaiah S., is the maternal uncle of the deceased-Manjula. He deposed that accused was harassing the deceased for bringing dowry. He has accompanied PW4 to Police Station to lodge complaint against the accused on an earlier occasion. He further deposed that three days prior to the incident, deceased called him and informed about the harassment given to her by the accused. In the cross-

examination, he deposed that in order to resolve the family dispute between accused and deceased, panchayat was held, however, no complaint has been lodged. He came to know about the unfortunate incident through PW4.

18. PW8-Harish, is a resident of Chitrahalli and he deposed that on the said day, while he was on his way to milk dairy, he noticed deceased coming out from her house with burn injuries and jumping into the water tank. He further stated that he is not a relative of the accused and at the time of incident, accused was at his land and thereafter, he came to the place.

He is a panch witness to the Exhibit P2. He was treated as hostile witness and as such, prosecution cross-examined him.

During cross-examination, he stated that the police brought MO1-Kerosene Can from the neighbours house. He further deposed that both the accused and deceased were in cordial relationship and he is unaware about the burn injuries.

19. PW9-Chandrappa, is a resident of Chitrahalli. He deposed that, he was on his way to milk dairy and noticed that the deceased coming out from the house with burn injuries and immediately, ambulance was called and she was taken to Chitradurga District Hospital. He further deposed that at the time of the incident, accused was not present and he was at his land. In the cross-examination, he stated that accused and 17 deceased were in cordial relationship, so also, deceased was not in a position to speak due to burn injuries.

20. PW10-T.Basavarajappa, is a resident of Chitrahalli and he reiterated the statement of PW-9.

21. PW11-Dr. Y C Rudresh, who has conducted autopsy on the dead body. He has deposed that, postmortem staining could not be appreciated due to burn injuries sustained by the deceased. He further deposed that there is second and third degree external burn injuries over the body in an extent of 80- 83% and opined that death was due to shock, secondary to burn injuries. He conducted post-mortem as per Exhibit P6. In the cross-examination, he denied the suggestion that, if a person sustained burn injuries in an extent of 80-83%, he/she may not speak. However, he further deposed that it depends upon human body and varies from person to person.

22. PW12-Basavaraj is Head Constable, Holalkere Police Station. He deposed that upon receiving information from the Hospital, as per Exhibit P7, at the instructions of PSI-CW22, he went to the Hospital on 10th January, 2014 and made requisition 18 to the Doctor as per Exhibit P8 to ascertain the mental fitness of the deceased to render statement and thereafter, at the instance of Dr. Basavaraj, he recorded the dying declaration of the deceased as per Exhibit P9. He deposed that contents of Exhibit P9 was read-over to the deceased and accordingly deceased signed on Exhibit P9. Dr. Basavaraj has also signed Exhibit P9.

He further deposed that the deceased informed that her husband-accused mentally and physically harassed her for dowry. On 12th January, 2014, he came to know about the death of the victim and thereafter, he gave requisition to the Doctor for post-mortem and accordingly, autopsy was done on the dead body of the deceased by PW11.

23. PW13-Disha, is the daughter of accused and deceased, deposed that she is residing with her grandfather-

PW4. She deposed that, she was studying 1st standard at the time of incident and she further stated that usually she used to visit her parents house for lunch at 2.00 pm and would return to school by 2.30 pm and will return from school after 3.30 pm. She further deposed that accused used to harass her mother and 19 was a drunkard. She further deposed that accused harassing the deceased for dowry. On the date of incident, accused enquired the deceased about dowry/jewels, and thereafter, doused kerosene on the deceased and lit fire. After that, accused left the house by locking the door. However, deceased opened the door and jumped into the water tank. Thereafter, deceased was taken to Hospital. PW13-Disha further deposed that the accused is the cause for death of her mother. In the cross-examination, at paragraph 6, she stated that she came to house for lunch at 2.00 pm and did not got to school in the afternoon. Around 2.45 pm, accused came home and assaulted her mother physically.

She further deposed that at the time of incident, she was at room and went to the spot, after hearing the screaming voice of her mother.

24. PW14-Manjunatha T. was the CPC, Holalkere Police Station. He deposed that he has seized the material objects and present at the spot while drawing mahazar.

25. PW15-Lokesh, deposed that he is working as Assistant to the Investigating Officer. He deposed that he had taken photographs of the deceased.

26. PW16-Asha, WPC, deposed that she has recorded the statement of PW13 and also deposed that PW13 was aged about six years at the time of incident.

27. PW17-Kumaraswamy, Head Constable, Holalkere Police Station, who received Exhibit P9 from PW12.

28. PW18-Dr.Basavaraj, Senior Surgeon, District Hospital, Chitradurga. He deposed that, he received requisition from Police, as per Exhibit P8 and further deposed that on 10th January, 2014, he declared that the deceased was fit to give statement to the police. He also deposed that deceased narrated the statement as per Exhibit P9 in his presence and he acknowledged his signature on Exhibit P9.

29. PW19-Srinivas is CPI, Holalkere Police Station and Investigation Officer. He deposed about recording of Inquest as per Exhibit P1 and recorded the statement of witnesses. He 21 further deposed that material objects have been sent to Forensic Science Laboratory, Bengaluru, and received report as per Exhibit P19. He also deposed that, he recorded the statement of PW13 on 13th January, 2014.

30. PW20-Rangaswamy, PSI, Holalkere, deposed that on 11th January, 2014, he received complaint through PW17 and registered a case against the accused, visited the spot and drawn panchanama as per Exhibit P2. He further stated about the seizure of material objects.

VI. FINDINGS RECORDED BY THE LEARNED SESSIONS JUDGE:

31. Based on the aforementioned oral and documentary evidence, learned Sessions Judge recorded the finding that the Prosecution has proved that on 10th January, 2014, at about 3.00 pm, the accused in his residential house at Chitrahalli, with an intention to commit murder, poured Kerosene on his wife (deceased-Manjula) and set fire to her and as a result of the same, she suffered grievous burn injuries and succumbed to injuries on 12th January, 2014 at about 6.30 pm in District 22 Hospital, Chitradurga and thereby, the accused committed an offence punishable under Section 302 of Indian Penal Code.

VII. CONSIDERTION:

32. We have carefully re-appreciated the evidence of witnesses and perused the records. It is well-established principle that it is the duty of the prosecution to prove that the death of Manjula is a homicidal death and in this behalf, the prosecution has examined PW8, 9, PW11 and PW15.

33. Firstly, the entire case of the prosecution rests upon the PW13-Disha, a child witness; and secondly, the dying declaration attributed to the deceased. Before analysing the evidence of PW13, it is relevant to understand the law on accepting the child witness. The Hon'ble Apex Court in the case of RAMESHWAR KALYAN SINGH v. STATE OF RAJASTAN reported in AIR (39) 1952 SC 54, wherein at paragraphs 11, 19 and 20, it is observed thus:

"11. I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth 23 and state why they think that, otherwise the credibility of the wit- ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evidence is admissible. In (1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337 the Privy Council case which I have just cited, their Lordships said-

"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."

12 to 18. xxx xxx xxx

19. There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown-up woman it is unnecessary in the case of a child of tender years. Bishram. v. Emperor(1) is 24 typical of that point of view. On the other hand, the Privy Council has said in Mohamed Sugal Esa v. The King(2) that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the (1) A.I.R. 1944 Nag. 363. (2) A.I.R. 1946 P.C. 3 at 5 jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be 25 understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.

20. I turn next to the nature and extent of the corroboration required when it is not considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville's case(1) at pages 664 to 669. It would be impossible. indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear."

34. It is also relevant to consider the law declared by the Hon'ble Apex Court in the case TEHAL SINGH v. STATE OF PUNJAB, reported in AIR 1979 SC 1347 wherein at paragraph 5 of the judgment, it observed thus:

"5. Hardip Singh is a lad of 13 years. In our country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do men's work. They are certainly capable of understanding the significance of the oath and the necessity to speak the 26 truth. The learned Sessions Judge who had the opportunity of seeing the witness Hardip Singh in the witness box did not consider it necessary to treat him as a child witness. A perusal of his evidence also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitaley's argument and proceed on the basis that Hardip Singh is a child witness. Even otherwise, having gone through his evidence we are satisfied' that his evidence does not suffer from any infirmity. He was cross- examined at great length but nothing was elicited from him to dub him as a false or a tutored witness. The mere circumstance that he is the son of one of the deceased person does not justify our looking at his evidence with any suspicion. The dying declaration refers to his presence. There was no reason for him to he influenced by anyone else to implicate the accused, nor was there any reason for anyone else to influence him to implicate the accused. The learned Sessions Judge found no hesitation in accepting the evidence of Hardip Singh about whom he made the following observation:

The statement of Hardip Singh P.W. 18 is still fresh in my mind and when read as a whole it gives an impression that though this young lad of 13 years was subjected to a long detailed and searching cross-examination but he gave consistent and rational replies. The learned Counsel for the accused was not able to bring any circumstances from which I may reject the testimony of Hardip Singh P.W. 18.

The High Court also observed:

Though patently a young boy he has emerged from a long and protracted cross-examination as a truthful witness and nothing of any significance would be elicited from him which would in any way detract from the massive weight of testimony.

We endorse the opinion of the learned Sessions Judge and the High Court about the weight to be attached to the evidence of P.W. 18 Hardip Singh."

35. In the case of SURESH v. STATE OF UTTAR PRADESH reported in AIR 1981 SC 1122, at paragraph 11, it is observed thus:

"11. Crimes like the one before us cannot be looked upon with equanimity because they tend to destroy one's faith in all that is good in life. A starving youth was given shelter by a kindly couple. The reward of that kindness is the murder of the woman and her child. We cannot condemn adequately the utterly disgraceful and dastardly conduct of the appellant. But all the same, the question as to whether the death sentence is called for has to be examined in each case with dispassionate care. The appellant was just about 21 years of age on the date of the offence and, very probably, a sudden impulse of sex or theft made him momentarily insensible. The evidence of Sunil shows that immediately after the crime, the appellant was found sitting in the chowk of the house 28 crying bitterly. Having achieved his purpose he did not even try to run away, which he could easily have done since, his injuries were not of such a nature as to incapacitate him from fleeing from an inevitable arrest. It would also appear that though he was not insane at the time of the offence in he sense that he did not know the nature and consequences of what he was doing, still he was somewhat unhinged. He was suspected to be insane during the trial and was kept in a mental hospital from July 19, 1973 to February 2, 1975. He was eventually declared fit to stand his trial but the evidence of Dr. R. N. Srivastava (P.W. 13), who was in charge of the hospital and the notes (Exhibit Ka-20) of the hospital show that the appellant had shown aggressive symptoms and once, he had attacked another patient. Coupled with these considerations is the fact that the basic evidence in the case is of a child of five who answered many vital questions with a nod of the head, one way or the other. A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale. We cannot also overlook, what Shri L. N. Gupta highlighted, that Sunil's statement was recorded about 20 days later. There is valid reason for the delay, namely, his state of mind (he was a witness to the murder of his mother and an infant brother) and the state of his body (he was gagged as a result of which his clavicle was fractured). Children, in the first place, mix up 29 what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life.

The learned Sessions Judge did not ask the appellant what he had to say on the question of sentence, holding that section 235 (2) of the Code of Criminal Procedure, 1973 did not, by reason of its section 484 (2)

(a), apply to trials which were pending on the date when the new Code came into force. We wish that the Sessions Court had questioned the appellant on the sentence, whether the letter of section 235(2) governed the matter or not. That would have furnished to the Court useful data on the question of sentence which it proposed to pass. In any case, the trial would not have been invalidated if the Court were to apply the provisions of that section which were introduced into the Code ex debito justiciae. The learned Judge had before him a safe expedient, the benefit of which he needlessly denied to himself on technical considerations."

36. In the case of STATE OF ASSAM v. MAFIZUDDIN AHMAD reported in (1983)2 SCC 14, at paragraph 14, 15, 16, 17 and 18 it observed thus:

"14. The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment :

"... the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring."

15. A bare perusal of the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years. But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other.

16. He had told the police that he was in the mango grove at the time of occurrence. If this be a fact then he could not be an eye witness of the occurrence but when he came to depose before the Court he said :

"Ahmed is my father's brother. He was not at home at the time of the occurrence. He came later. He taught me to tell police that I had been in the mango grove at the time of occurrence. That is why I told police so. Later, in company with my maternal grand father, Alimuddin I said what I had seen."

Again, the first thing that he uttered when the house caught fire is "Gharat Jui Lagil" (the house has caught fire). This statement is more in consonance with the defence theory. His mother was more important for him and if it was a fact that his father had set fire to his mother by sprinkling kerosene oil to which he was a witness he would not have omitted to say so. In the next breath he deposed that his father poured scented oil on his mother's body and not kerosene oil.

17. The fact that he was tutored is fully borne out by his own statement, as will be clear from the following portion of his deposition:

""Nana" accompanied me when I came to depose in the lower court, but stayed outside. I stated in that court that I had stated what "Nana" asked me to. The day before I came to depose, I had told "Nana" what I would say."

18. It is also clear from the materials on the record that on the advice of the police Alimuddin Ahmed, the nana of PW 7 applied for his custody during the enquiry proceedings but the Magistrate instead of giving custody to the nana gave the custody of PW 7 to his nani, who was no other than the wife of Alimuddin. So to all intents and purposes the custody of the boy remained with Alimuddin Ahmed, the nana. Indeed, he took the boy for giving evidence in court. P.W. 7 was in the full control of the nana and deposed as he was asked to depose. In 32 this setting the observation made by the High Court is fully justified."

37. In the case of PRAKASH AND ANOTHER v. STATE OF MADHYA PRADESH reported in (1992)4 SCC 224, at paragraph 11 of the judgment, it is held thus:

"11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and the High Court of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by the eye-witness. There may be some minor discrepancies in the evidence of the eye-witness but so far as the complicity of Prakash is concerned, the depositions of the eye-witnesses were consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 33 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored.

The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye-witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and 34 circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 302, I.P.C. and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view, the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, I.P.C. and has considered his case with such sympathy as the said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, I.P.C. We, therefore, find no reason to interfere with the conviction or the sentence passed against the accused Shiv Narayan. The appeals therefore fail and are dismissed. The bail bond of the accused Prakash is discharged and he would surrender and serve out the sentence."

38. In the case of MANGOO v. STATE OF MADHYA PRADESH reported in AIR 1995 SC 959, at paragraphs 5 and 6, it is observed thus:

"5. We have carefully gone through the evidence of PW-2. He has deposed that after having seen such a ghastly occurrence, he ran crying and on the way he met PW-1 to whom he narrated the woeful tale. From the record we find that PW-1 has given Ex. P-1 within half an hour. In Ex. P-1 it is mentioned that PW-1 met PW-2, son of the deceased, who was weeping bitterly and informed him that the 4 accused had assaulted his father with Pharsa and Ballam and had severed both the hands. PW-1 on the basis of this information, gave Ex. P-1. This is how the law has been set into motion. Unless PW-2 was an eye-witness, these details could not have found place in Ex. P-1. Therefore, we have to accept that PW-2 was present and witnessed the occurrence. If that is so, these discrepancies pointed out by the learned Counsel regarding the number of blows inflicted and which side of the Pharsa was used in the first instance, are not at all material and at any rate they do not affect his veracity. Viewed from this angle, we would not agree that the medical evidence is in entire conflict with the ocular version of PW-2. The learned Counsel also pointed out that PW-2 being a child witness, there was every scope of tutoring and the fact that he has admitted that he was in the district headquarters for about 12 days before adducing the evidence, also shows that he must have been with the Police for the purpose of tutoring. The mere fact that he might 'have been taken by the Police to be produced as a witness, is not a ground to come to the 36 conclusion that the witness must have been tutored but on examining the evidence and from the contents, we have to see whether there are any traces of tutoring. We find that the version given by PW-2 appears to be quite natural and there is a ring of truth in the same. The evidence of PW-1 further corroborates the evidence of PW-2 namely to the extent that immediately after the occurrence PW-2 mentioned the names of the accused and the manner in which his father had been done to death.

6. We have also gone through the judgment of the trial court and we entirely agree with the High Court that the reasons given by the trial court for acquitting the accused are wholly unsound. For all these reasons, we find no merit in this appeal and the same is dismissed accordingly."

39. In the case of DATTU RAMA RAO SAKHARE AND OTHERS v. STATE OF MAHARASTRA reported in (1997)5 SCC 341, at paragraph 5 it is observed thus:

"5. The entire prosecution case rested upon the evidence of Sarubai (P.W.2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child be the basis of conviction. In other words even in the absence of oath the evidence of a child 37 witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai(P.W.2)."

40. The view taken by the Hon'ble Supreme Court in the case of DATTU RAMA RAO SAKHARE AND OTHERS (supra), has been reiterated in the case of PANCHHI AND OTHERS v. STATE OF UTTAR PRADESH reported in (1998)7 SCC 177.

41. In the case of RATANSINH DALSUKHBHAI NAYAK v.

STATE OF GUJARAT reported in AIR 2004 SC 23, at paragraphs 8 and 9, held thus:

"8. The learned trial Judge has elaborately analysed the evidence of eyewitness. There is no reason as to why she would falsely implicate the accused. Nothing has been brought on record to show that she or her father had any animosity so far as the accused is concerned. The prosecution has been able to bring home its accusations beyond shadow of doubt. Further, the trial court on careful examination was satisfied about child's capacity to understand and to give rational answers. That being the position, it cannot be said that the witness (PW11) had no maturity to understand the import of the questions put or to give rational answers. This witness was cross-examined at length and in spite thereof she had described in detail the scenario implicating the accused to be author of the crime. The answers given by the child witness would go to show that it was only repeating what somebody else asked her to say. The mere fact that the child was asked to say about the occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to tutoring and that she was deposing only as per tutoring what was not otherwise what she actually saw. The learned counsel for the accused-appellant has taken pains to point out certain discrepancies which are of very minor and trifle nature and in no way affect the credibility of the prosecution version.

9. Evidence of PW11, the child witness has credibility which reveals a truthful approach and her 39 evidence to put it milady has ring of truthing. There are no exaggerations and she has stuck to her statement made during investigation in all material particulars. That being so, the trial court and the High Court were justified in placing implicit reliance on her testimony. In addition, the evidence to recovery and the report of the Forensic Science Laboratory provide additional support to the prosecution version."

42. In the case of STATE OF UTTAR PRADESH v.

KRISHNA MASTER AND OTHERS reported in AIR 2010 SC 3071, at paragraph 13 of the judgment, held thus:

"13. The abovestated reasons are the only grounds on which testimony of witness Madan Lal is disbelieved by the High Court. This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lal's understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, 40 brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence. This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW2, Madan Lal came to be disbelieved can hardly be affirmed by this Court. One of the reasons given by the High Court to disbelieve testimony of witness Madan Lal is that Rajesh and Smt. Sarla who were of mature age and were in a better position to depose about the incident were not produced before the Court. It is nobody's case that witness Madan lal was in charge of prosecution case. The Public Prosecutor was in charge of the case and it was for him to decide whether Rajesh and/or Smt. Sarla should be examined or not. The evidence of witness Madan Lal, in no uncertain terms, discloses that his brother Rajesh and sister Smt. Sarla were ready to depose before the Court about the incident. However, for non-production of his brother Rajesh and his sister Sarla before the Court, witness Madan Lal was 41 never responsible. He had not taken any decision for examining his brother Rajesh and Smt. Sarla. It was the discretion and decision of the Public Prosecutor due to which his brother and sister were not examined as witnesses. At no stage of the trial, the defence had made a request to the Trial Court to call upon the Public Prosecutor to examine Rajesh and Smt. Sarla as witnesses. It is the case of the defence that Rajesh and Smt. Sarla had witnessed the incident and if they had been examined as witnesses, they would have deposed against the prosecution case that the respondents were not responsible for murders of five family members of Guljari and brother of the first informant. In such circumstances, it was incumbent upon and open to the defence to examine Rajesh and/or Smt. Sarla as defence witness. No prayer was made by the defence to examine Rajesh and Smt. Sarla even as court witnesses. Therefore, for non-examination of Rajesh and/or Smt. Sarla, witness Madan Lal could not have been blamed nor his evidence could have been brushed aside in a casual manner. The acceptance of submission made by the counsel for the respondents that Rajesh and Smt. Sarla were not produced because they were not prepared to support the false story set up by PW1, Jhabbulal in his FIR against the respondents on account of his personal animosity, is not understandable at all and appears to be figment of imagination of the defence. Nothing could be brought on record or elicited from the cross- examination of either PW1 Jhabbulal or PW2 Madan Lal to show that 42 they were ready and willing to allow real culprits who had committed heinous crime and virtually wiped off family of Guljari and murdered real brother of the first informant to go scot free and implicate the respondents falsely in such a serious case."

43. In the case of STATE OF MADHYA PRADESH v.

RAMESH AND ANOTHER reported in (2011)4 SCC 786, at paragraphs 7 to 14, the Hon'ble Supreme Court has observed thus:

"7. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.

The Court further held as under:

"11.....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the 43 credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."

8. In Mangoo & Anr. v. State of Madhya Pradesh, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

9. In Panchhi & Ors. v. State of U.P., this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring." (SCC p.181 para 11) 44

10. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, this Court dealing with the child witness has observed as under:

"10....7....The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff 45 cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra,).

12. In State of U.P. v. Krishna Master & Ors., this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality 46 the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab,)

14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."

44. In the case of K. VENKATESHWARLU v. STATE OF ANDHRA PRADESH reported in (2012)8 SCC 73, at paragraph 9, has observed thus:

"9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of 47 giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court.

Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it."

45. In the case of RADHE SHYAM v. STATE OF RAJASTAN reported in (2014)5 SCC 389, at paragraph 10 to 12 of the judgment, the Hon'ble Supreme Court observed thus:

"10. PW-2 Banwari is a child witness. He was ten years old when he gave evidence. Before we proceed to his evidence, we must refer to the judgments of this 48 Court on which reliance is placed by the counsel to show how child witness's evidence is to be appreciated.

11. In Ratansinh Dalsukhbhai Nayak, this Court considered the evidentiary value of the testimony of a child witness and observed as under: (SCC pp.67-68, para 7) "7...The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

12. In Panchhi, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed 49 that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles."

46. Recently, in the case of P RAMESH v. STATE, REPRESENTED BY INSPECTOR OF POLICE reported in AIR 2019 SC 3559, at paragraph 13, 14 and 15 of the judgment, it is observed thus:

"13 Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all 50 witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years.

4.Section 118. Who may testify.-- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

5. Section 4. Oaths or affirmations to be made by witnesses, interpreter and jurors.--

(1) Oaths or affirmations shall be made by the following persons, namely:-- (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence 51 given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra6, where this Court, in relation to child witnesses, held thus:

"5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

14. A child has to be a competent witness first, only then is her/his statement admissible. The rule was 52 laid down in a decision of the US Supreme Court in Wheeler v United States, wherein it was held thus:

"... While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which- will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous..."

(emphasis supplied) In Ratansinh Dalsukhbhai Nayak v State of Gujarat, this Court held thus:

"7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established 53 principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

(emphasis supplied)

15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined."

47. In the case of DIGAMBAR VAISHNAV AND ANOTHER v.

STATE OF CHATTISGARH reported in (2019)4 SCC 522, in paragraphs 21 to 23, it is observed thus:

"21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.

22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P, State of 55 U.P. v. Ashok Dixit and another, and State of Rajasthan v. Om Prakash].

23. In Alagupandi v. State of Tamil Nadu, this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that: (SCC p.436, para

36) "36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."

48. In order to see the competence of the child to testify as a witness is concerned, the law declared by Justice Brewer in WHEELER v. UNITED STATES reported in 159 US 523 (1895) is 56 of much significance. It has been held that an evidence of a child witness is not required to be rejected per-se, but Court has a rule of prudence to consider such an evidence with close scrutiny only on being convinced about the quality thereof and reliability can record conviction, based thereon. It may be inferred that the testimony of a witness is based on apprehension that the children are vulnerable and susceptible to be swayed by what others tell and the child witness is an easy prey to tutoring and therefore, the evidence of the child must be evaluated carefully with greater circumspection.

49. In nutshell, after referring to the aforementioned decisions, we are of the considered view that the following nine principles (nav-tatva) shall be kept in mind while accepting the evidence of child witness:

      (i)      age of child at the time of incident;

      (ii)     age and circumstances at the time of entering
               the witness box;

      (iii)    relationship with the accused and victim;
                                  57




     (iv)   place    of   residence    before   and   after   the
            incident;

     (v)    the     atmosphere   in    which    the   child   was
            residing;

(vi) relationship with the guardian, in case the child is not in parental care;

(vii) whether the child is pursuing education;

(viii) capability of understanding questions posed and consequence of acceptance or rejection of evidence by the Court;

(ix) Whether the child witness is tutored at the instance of guardian or prosecution side at the time of trial;

50. In addition to the aforesaid principles, we are of the opinion that, while appreciating the evidence of child witness, that too when the child witness is a material and sole witness to decide the case on merits, the trial Court is circumscribed with all the surrounding circumstances to assess the same. Every word or a sentence is to be looked into with microscopic eye.

The trial Court is much clothed with responsibility while convicting the accused, as no accused shall be punished based 58 on unacceptable evidence of the child witness. The trial Court shall weigh each of the circumstances narrated above (nav-

tatva) before arriving at a conclusion. Even a solitary doubt in the mind of the Court shall favour the acquittal of the accused as, many a times, the child witness is prone to ill-advice and would be tutored inter alia would be easy prey to the words of guardian, as observed by Justice Brewer stated supra. Trial Court shall also keep in mind that "life is a story of few sunrise and sunsets." Thus, we are of the opinion that the above aspects should be reflected in the mind by the trial Court before rendering final verdict.

51. On evaluation of evidence of PW13-Disha, we find that there is mental immaturity of the child. Undisputably, PW13 was aged 6 years at the time of the incident and her observation, recollection of facts and capacity to understand the questions put to her, would indicate that she has been tutored by her grandfather-PW4 (Shekharaiah), as she was residing with her grandparents after the demise of her mother.

52. In her examination-in-chief, PW13-Disha stated as follows:

"¸ÁªÀiÁ£ÀåªÁV £Á£ÀÄ ±Á¯ÉUÉ ¨É½UÉÎ 10 UÀAmÉUÉ ºÉÆÃV ªÀÄzsÁåºÀß 2 UÀAmÉUÉ HlPÉÌ §gÀÄwÛzÉÝ£ÀÄ, HlªÀiÁr ªÀÄzsÁåºÀß 2.30 PÉÌ ±Á¯ÉUÉ ºÉÆÃV ¸ÀAeÉ 3.30PÉÌ ªÀÄ£ÉUÉ §gÀÄwÛzÉÝ£ÀÄ."

53. At paragraph 6, PW13 deposed as follows:

"CAzÀÄ WÀl£É ¢ªÀ¸À £Á£ÀÄ ªÀÄzsÁåºÀß HlPÉÌ ªÀÄ£ÉUÉ 2 UÀAmÉUÉ §AzÉ£ÀÄ. CAzÀÄ ªÀÄzsÁåºÀß ±Á¯É EvÀÄÛ, DzÀgÉ £Á£ÀÄ ºÉÆÃUÀ°®è. Hl ªÀiÁr ±Á¯ÉUÉ ºÉÆÃUÀ¨ÉÃPÀÄ C£ÀÄßªÀµÀÖgÀ°è DgÉÆÃ¦ ºÀjÃ±À ªÀÄ£ÉUÉ §AzÀ, UÀ¯ÁmÉ ªÀiÁrzÀ. »ÃUÁV £Á£ÀÄ ±Á¯ÉUÉ ºÉÆÃUÀ°®è. ªÀÄzsÁåºÀß 2.45 PÉÌ DgÉÆÃ¦ ªÀÄ£ÉUÉ §AzÀ. UÀ¯ÁmÉ £ÉÆÃr £Á£ÀÄ ±Á¯ÉUÉ ºÉÆÃUÀ°®è. FUÀ ¸ÀzÀå £À£Àß Hl, §mÉÖ ªÀéªÀºÁgÀªÀ£ÀÄß ¦qÀ§Æèöå-4 ±ÉÃRgÀAiÀÄå £ÉÆÃrPÉÆ¼ÀÄîwÛzÁÝ£É. ¦qÀ§Æèöå-4 ±ÉÃRgÀAiÀÄå ºÉÃ½zÀ ªÀiÁvÀ£ÀÄß PÉÃ¼ÀÄvÉÛÃ£É C£ÀÄßªÀÅzÀÄ ¤d."

(emphasis supplied)

54. Further, at paragraph 7, PW13 deposed as under:

"£Á£ÀÄ ªÀÄzsÁåºÀß ªÀÄ£ÉAiÀÄ gÀÆA£À°è Hl ªÀiÁqÀÄwÛzÉÝ. F UÀ¯ÁmÉ, WÀl£É ªÀÄ£ÉAiÀÄ £ÀqÀÄªÀÄ£ÉAiÀÄ°è DVgÀÄvÀÛzÉ. ¹ÃªÉÄJuÉÚ qÀ§â ªÀÄAZÀzÀ PÉ¼ÀUÉ EvÀÄÛ. DgÉÆÃ¦ ªÀÄAdÄ¼ÁUÉ ¨ÉAQ ºÀaÑzÁUÀ £Á£ÀÄ gÀÆA£À°èzÉÝ. ªÀÄAdÆ¼Á aÃjPÉÆAqÁUÀ £Á£ÀÄ CªÀ½zÀÝ eÁUÀPÉÌ ºÉÆÃzÉ£ÀÄ, DUÀ ¨ÉAQ £À£ÀUÉ vÀUÀ°®è. ¸Àé®à zÀÆgÀ EzÉÝ£ÀÄ. DgÉÆÃ¦ ¨ÉAQ ºÀaÑzÀ ªÉÄÃ¯É ªÀÄ£ÉAiÀÄ M¼ÀUÀqÉ¬ÄAzÀ ¨ÁV® ¨ÉÆÃ¯ïÖ ºÁQzÀÝ. £ÀªÀÄä vÁ¬Ä ªÀÄAdÄ¼Á ¨ÁV® vÉUÉzÀÄ ºÉÆgÀUÉ 60 ºÉÆÃUÀÄªÀ PÁ®PÉÌ DgÉÆÃ¦ £À£ÀUÉ ºÉÆqÉzÀ. F jÃw ºÉÃ¼À¨ÉÃPÀÄ CAvÁ ¯ÁAiÀÄgï ºÉÃ½zÁÝgÉ, £ÀAvÀgÀ ¸ÁQë ºÉÃ¼ÀÄvÁÛ¼É £À£ÀUÉ AiÀiÁgÀÄ ºÉÃ½ PÉÆnÖ®è, £Á£ÉÃ £ÉÆÃrzÀ «µÀAiÀÄªÀ£ÀÄß PÉÆÃmïð ªÀÄÄAzÉ ºÉÃ½zÉÝÃ£É CAvÁ GvÀÛj¹gÀÄvÁÛ¼É."

(emphasis supplied)

55. In order to weigh the credibility of deposition of PW13, the trial Court has satisfied that she has answered certain questions and hence come to a conclusion that PW13 understands the questions and capable of answering the same and accepting the same without appreciating the other relevant aspects stated above and arriving at a conclusion to punish the accused, in our opinion, requires interference and the entire evidence of PW13 corroborates that she has been tutored by the prosecution side and therefore, we are of the opinion that the trial Court committed error in assessing the evidence of PW13.

Dying Declaration

55. With respect to Section 32 of the Evidence Act, the only requirement under law is that, before a dying declaration is relied upon, the Court is primarily required to satisfy itself, that 61 the deceased was in a fit state of mind at the time of making the statement so that the possibility of any manipulation or concoction of the statement is ruled-out. In this regard, it is relevant to examine the law declared by the Hon'ble Apex Court in the following judgment.

56. Constitution Bench of the Hon'ble Apex Court in the case of LAXMAN v. STATE OF MAHARASTRA reported (2002)6 SCC 710, at paragraphs 3, 4 and 5, has observed thus:

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 62 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and 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 63 magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

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 & Ors. vs. State of Andhra Pradesh the dying declaration in question 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 64 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 form 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 & Another vs. State of Gujarat 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 vs. State of Punjab 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 VS. State of Punjab case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was 65 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 & Ors. vs. State of Andhra Pradesh (at SCC p.701, para 8)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 where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another vs. State of Gujarat."

57. In the case of SHAM SHANKAR KANKARIA v. STATE OF MAHARASHTRA reported in (2006)13 SCC 1625 at paragraphs 8 to 12, it is observed thus:

"8. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye- witness to the crime, the exclusion of the statement 67 might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations 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 mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock (1789) 1 Leach

500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain:

"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?"

(See King John, Act 5, Sect.4)

9. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo 68 moriturus proesumitur mentiri a man will not meet his maker with a lie in his mouth."

10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and 69 voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (SCC pp.480-81, para18):

" (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh ]

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. and Ramavati Devi v. State of Bihar]

(iii) The Court has to scrutinize 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. [See K.Ramachandra Reddy and Anr. v. The Public Prosecutor]

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v.

State of Madhya Pradesh]

(v) Where the deceased was unconscious and could never make any dying declaration the 70 evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P.]

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

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

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar]

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye- witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh].

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

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

12. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. 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. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [See Gangotri Singh v. State of U.P. , Goverdhan Raoji Ghyare v. State of Maharashtra , Meesala Ramakrishan v. State of Andhra Pradesh and State of Rajasthan v. Kishore]

58. In the case of ATBIR v. GOVERNMENT OF NCT OF DELHI reported in (2010)9 SCC 1, at paragraphs 14 to 22, the Hon'ble Supreme Court has observed thus:

(A) "Dying Declaration".

14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to 72 traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account.

15. In Munnu Raja and Another vs. The State of Madhya Pradesh, this Court held (SCC pp.106-07, para

6) :-

"6....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...."

It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.

16. In Paras Yadav and Ors. vs. State of Bihar, this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can 73 also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement.

17. The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab, Paragraph 23 of the said judgment is relevant which reads as under: (SCC p.289) "23. However, in State of Karnataka v. Shariff, this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra,)."

It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR.

18. In State of Rajasthan vs. Wakteng, the view in Balbir Singh's case has been reiterated. The following conclusions are relevant which read as under:(Wakteng case, SCC p.554, paras 14-15) "14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction."

19. In Bijoy Das vs. State of West Bengal, this Court after quoting various earlier decisions, reiterated the same position.

20. In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N.,, the following discussion and the ultimate conclusion are relevant which read as under: (SCC p.120, paras 14-15) 75 "14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with.

Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-

examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

21. The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State 76 of Tamil Nadu, and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat.

22. The analysis of the above decisions clearly shows that,

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

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

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

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

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

59. The Hon'ble Supreme Court in the case of NARESH KUMAR v. KALAWATI reported in AIR 2021 SC 1605 at paragraph 12 of the judgment, observed thus:

12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed:

"9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified "patient is conscious while recording the state ment". It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per formed the postmortem stated that the injured had sustained 90% burn injuries. In this case as stated ear lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose cution to prove the dying declaration as being genuine, true and free from all doubts and it 78 was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the state ment". In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below."

60. Recently, in the case of PURUSHOTTAM CHOPRA v.

STATE (GOVERNMENT OF NCT, DELHI) reported in AIR 2020 SC 476 paragraph 18 to 21, it is observed thus:

"18. The principles relating to admission and acceptability of the statement made by a victim representing the cause of death, usually referred to as a dying declaration, are well settled and a few doubts as regards pre-requisites for acceptability of a dying declaration were also put at rest by the Constitution Bench of this Court in the case of Laxman v. State of Maharashtra: (2002) 6 SCC 710 : AIR 2002 SC 2973) 18.1. In the said case of Laxman, conviction of the appellant was based on dying declaration of the deceased which was recorded by the Judicial Magistrate. The 79 Session Judge and the High Court found such dying declaration to be truthful, voluntary and trustworthy; and recorded conviction on that basis. In appeal to this Court, it was urged with reference to the decision in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh: 1999 CriLJ 4321 that the dying declaration could not have been accepted by the Court to form the sole basis of conviction since certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement. On the other hand, it was contended on behalf of the State, withreference to the decision in Koli Chunilal Savji and Anr. v. State of Gujarat: 1999 CriLJ 4582, that the material on record indicated that the deceased was fully conscious and was capable of making a statement; and his dying declaration cannot be ignored merely because the doctor had not made the endorsement about his fit state of mind to make the statement. In view of these somewhat discordant notes, the matter came to be referred to the Larger Bench. The Constitution Bench summed up the principles applicable as regards the acceptability of dying declaration in the following:-

"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 80 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 the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of 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 looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man 81 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 weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

18.2. The Constitution Bench affirmed the view in Koli Chunilal Savji AIR 1999 SC 3695 (supra) while holding that Paparambaka Rosamma AIR 1999 SC 3435 (supra), was not correctly decided.

The Court said,-

"5.......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 especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v.

State of A.P.(1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562 :

AIR 1999 SC 3695)"

19. In the case of Dal Singh AIR 2013 SC 2059 (supra), this Court has pointed out that the law does not provide as to who could record dying declaration nor is there a prescribed format or procedure for the same. All that is required is the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. This Court also pointed out that as to whether in a given burn case, the skin of thumb had been completely burnt or if some part of it will remain intact, would also be a question of fact. This Court said,-

"20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement.

Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case.

21. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying 83 declaration, unless the declaration suffers from any infirmity.

22. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact."

19.1. In the case of Bhagwan AIR 2019 SC 4170 (supra), this Court accepted the dying declaration made by a person having suffered 92% burn injury and whose continued consciousness was certified by the doctor. This Court referred to the decision in Vijay Pal v. State (Government of NCT of Delhi): (2015) 4 SCC 749, where the statement made by the victim having suffered 100% burn injury was also accepted. This Court said :-

" 23.....(B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?

24. This question is also no longer res integra. In Vijay Pal v. State (NCT of Delhi):

2015 (4) SCC 749, we notice the following discussion: (SCC p. 759, paras 23-24) '23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69 wherein it 84 has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of M.P. v. Dal Singh: (2013) 14 SCC 159, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.'

25. Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable."

20. In the case of Gian Kaur (supra), the dying declaration was disbelieved on the ground that though as per medical evidence the deceased had 100% burn injuries but the thumb mark appearing on the dying declaration had clear ridges and curves. The benefit of doubt extended by the High Court was found to be not unreasonable and hence, this Court declined to interfere while observing as under:-

"5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the 85 evidence of Dr Ajay Sahni-PW 1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."

20.1. In the case of Gopal Singh (supra), the Court found that the dying declaration did not contain complete names and addresses of the persons charged with the offence and it was found that conviction could not be based on such dying declaration alone without corroboration. Essentially, for the infirmity carried by such dying declaration, this Court found lesser justification for the High Court's interference with the order of acquittal while observing as under:-

"8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required......"

20.2. In the case of Dalip Singh (supra), the alleged dying declaration turned out to be doubtful for it contained such facts which could not have been in the knowledge of the deceased and hence, this Court found it unsafe to rely on the same while observing as under: -

"9......The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declaration...."

20.3. In the case of Thurukanni Pompiah (supra), this Court held that while a truthful and reliable dying declaration may form the sole basis of conviction, even without corroboration but the Court must be satisfied about its truthfulness and reliability; and if the Court finds that the declaration is not wholly reliable and a material portion of the deceased's version of the occurrence is untrue, the Court may, in the circumstances of a given case, may consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. This Court observed, inter alia, as under:-

"10. Under clause (1) of Section 32 of the Indian Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person's death comes into question, and such a 87 statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is therefore relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that 'it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration."

20.4. In the case of Uka Ram (supra), this Court again emphasised on the requirement that the Court should be satisfied about trustworthiness of the dying declaration, its voluntary nature and fitness of the mind of the deceased and it was held that:

"6. ....Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence."

20.4.1. In the said case of Uka Ram, however, the Court found that the deceased was a mental patient and there existed a doubt about mental condition of the deceased at the time of making the dying declaration. In the given circumstances, this Court found that to be a fit case to extend the benefit of doubt to the accused.

21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit 89 state of mind and is capable of making the statement

vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.

61. It is also useful to refer to the law declared by the Hon'ble Supreme Court in the case of NARESH KUMAR v.

KALAWATI (supra), wherein at paragraph 9 and 13 of the judgment, it is observed thus:

"9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its 90 truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.

10 to 12 xxx xxx xxx

13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents."

62. It is pertinent to refer to ratio laid down by the Hon'ble Supreme Court in the case of JAYAMMA AND ANOTHER v. STATE OF KARNATAKA reported in AIR 2021 SC 2399, wherein at paragraph 22 of the judgment, it is observed thus:

"22. Having meditated over the issue to the extent it is possible, and on a minute examination of the original document Ex.P5 (without understanding its contents as it 91 is in Kannada language except that the endorsement of the doctor is in English) read with its true translation placed on record, we do not find it totally safe to convict the appellants on the basis of the said document along with its corroboration by PW11 and PW16. We say so for several reasons as summarised hereinafter:

Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. Although it is stated that deceased was questioned by the Police officer, the purported dying declaration is not in a questions and answers format. The direct or indirect dominance of the Police Officer appears to have influenced the answers only in one direction.

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

Thirdly, there is sufficient evidence on record that the victim had been administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. We say so at the cost of repetition that the doctor (PW16) made the 92 endorsement that the victim was in a fit state of mind to make the statement 'after' the statement was recorded and not 'before' thereto -- being the normal practice. It further appears to us that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the Police Officer (PW11) intended to. True it is that the Police Officer (PW11) had no axe to grind or a motive to implicate the appellants, but his over enthusiasm to solve a criminal case within no time seems to have swayed the Police Officer (PW11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself.

Fourthly, there is a serious contradiction between the statement of Dr. A. Thippeswamy (PW16) on one hand and the police officer K.V. Mallikarjunappa (PW11) on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police officer claims that her hands were safe and she could put her thumb impression. We have seen the thumb impression very scrupulously and the same appears to be absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in 93 respect of the nature and gravity of injuries, stands belied.

Fifthly, and most importantly the police officer K.V. Mallikarjunappa (PW11) candidly admits that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement. Both the police officer as well as the doctor have tried to cover up this serious lacuna by referring to the purported oral endorsement of the doctor. It appears that the police officer was in full command of the situation and with a view to fill up the legal lacuna, he later on secured the endorsement from the doctor (PW16) on the available space of the paper, which is exfacie unusual and not in line with settled legal procedure.

Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene and lit the victim on fire only because her son had assaulted the husband of Appellant No.1 and the accused were insisting on payment of Rs.4,000/ which was spent on the treatment of the said assault-victim. Not much can be said when the deceased's own son and daughter-in-law have denied this incident and rather claimed that their mother/mother-in-law committed suicide.

The Seventh reason to dissuade us from harping upon Ex.P5 is the conduct of the parties, i.e., a natural recourse expected to happen. Had it been a case of homicidal death, and the victim's son (PW2) and her daughter-in-law (PW5) had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide. The Eighth reason which makes us reluctant to accept the contents of purported dying declaration (Ex. P-5), is the fact that victim, Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries after almost 30 hours later at 5:30 am on 23.09.1998. It is neither the case of prosecution nor has it been so stated by PW-11 or PW-16 that soon after recording her statement (Ex. P-5) she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after 95 complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement.

We hasten to add that the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case."

63. Following the dictum of the Hon'ble Apex Court with regard to credibility and acceptability of dying declaration to the contextual facts of the present case, we find major contradictions in the evidence of PW1, PW2 and PW4 with that of the evidence of PW9, PW10 and PW11 with respect to relationship between the accused and the deceased and prosecution fails to prove the motive of the accused to commit such a heinous crime. None of the relatives of the accused were examined to arrive at the conclusion that the accused had continuous relationship with his parents and his family members.

PW2, in an unequivocal statement, has deposed that the accused and deceased were cordial for a period of six years and in that view of the matter, we find that the reasoning of the trial Court is casual with scant regard to the principles of appreciation of evidence in a criminal case and that apart, the learned Sessions Judge while appreciating the facts, repeatedly connoted that there is no dispute with regard to the facts, however, the trial Judge unnoticed that the same itself is a fact in issue under Section 3 of Indian Evidence Act which requires to be proved beyond reasonable doubt in a criminal trial. It is well-

established principle of law that in a criminal trial, court is not to merely see that no innocent main is punished, on the other hand, it has to be seen that a guilty man does not escape. Proof beyond reasonable doubt is a guideline to decide the criminal cases. Even a small element of suspicion in the mind of the court should favour the acquittal. In the backdrop of discussion made above and after re-assessment of evidence, we noticed that PW4 and PW6 deposed that, they had filed complaint against the accused for dowry harassment before the jurisdictional police. However, neither the copy of the complaint 97 is produced or independent witness has been examined to prove the same. PW7 deposed that panchayat was held to advice the accused to lead a harmonial marital life, however, PW4 and PW6 did not support the said evidence and on the other hand, no independent witness, who has participated in the panchayat, has been examined to prove the same. PW1, PW5, PW8, PW9 and PW10 deposed that, at the time of the incident accused was working at his land and was brought to the place of incident on a motorcycle and the said aspect has not been countered by the prosecution. PW5 and PW8 deposed that material object MO1- kerosene Can, alleged to have been used for the commission of offence was lying in the neighbour's house and the prosecution failed to prove before the trial Court as to why the MO1- kerosene Can was kept in the neighbour's house and these material facts would force this Court to reverse the judgment of the trial Court and to acquit the accused as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

64. Thus, we are of the opinion that the trial Court was not justified in convicting the accused under Section 302 of Indian Penal Code. Hence, we proceed to pass the following:

ORDER

1. Appeal is allowed;

2. The judgment of conviction dated 27th June, 2016 and order of sentence dated 29th June, 2016 passed in SC No.64 of 2014 by the Principal District and Sessions Judge, Chitradurga is hereby set aside;

3. Consequently the appellant-accused is acquitted from the charges for the offence punishable under Section 498(A) and 302 of Indian Penal Code;

4. The appellant-accused in set at liberty forthwith, if he is not required in any other case;

5. If the appellant-accused has deposited any fine amount, the same is ordered to be refunded, on proper identification and acknowledgment.

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