Smt Jayamma vs The State Of Karnataka on 26 September, 2024

[Cites 14, Cited by 0]

Karnataka High Court

Smt Jayamma vs The State Of Karnataka on 26 September, 2024

1. These six appeals have been preferred by accused Nos. 1 to 6 respectively challenging the judgment of conviction and order on sentence rendered by the learned III Addl. District and Sessions Judge, Hassan in S.C.No.303/2014 dated 26.10.2017, whereby accused Nos. 1 to 4 shall be sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 of IPC and accused Nos. 1 to 4 and 6 shall be sentenced to undergo simple imprisonment for a period of 3 years for the offence punishable under Section 201 read with Section 34 of IPC and the sentence undergone by the accused Nos. 2, 3 and 6 during the crime stage shall be ordered to be set off for the period they undergone in custody.

2. Perused the judgment of conviction and order of sentence rendered by the learned III Addl. District and Sessions Judge, Hassan in S.C.No.303/2014 dated 26.10.2017 -8- NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS inclusive of evidence of P.Ws. 1 to 20, documents at Ex.Ps.1 to 27 and material objects at M.Os.1 to 4.

3. The factual matrix of these appeals is as under:

On 08.04.2014 at about 9.00 a.m., when C.W.1-Devika was present in her house along with the family members of this accused situated at Aregallu Village, Konanuru Hobli, Arakalgudu Taluk. By that time, accused Nos. 1 to 4 had trespassed into the house of C.W.1 and picked up quarrel with her for the reason that C.W.1 was having a love affair with one Rajegowda. With an intention to eliminating her, they have doused kerosene on C.W.1 and set her ablaze and made an attempt to commit murder of C.W.1, due to which, C.W.1 sustained burning injuries on all over the body. Immediately she was taken to Government Hospital, Konanur in an autorikshaw, later, Arakalagudu General Hospital and thereafter, Government Hospital, Hassan. On 19.04.2014, C.W.1 got discharged from the Government Hospital, Hassan and while she was being taken to Mysore for better treatment, she succumbed to the injuries on the way to the Mysore. Subsequent to her death, the accused persons inclusive of her -9- NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS parents i.e., accused Nos. 5 and 6 with an intention to screen the legal evidence, burnt the dead body of deceased Devika in their filed.

4. The police have recorded the statement of C.W.1 on 09.04.2014 at 1.00 a.m., while taking treatment at Government Hospital, Hassan. On the basis of her statement, the criminal law set into motion in Cr.No.98/2014, initially, for the offences punishable under Sections 448, 307 read with Section 34 of IPC, 1860. Subsequent to her death, the offence under Section 302 of IPC has been included in the FIR which is said to have been recorded in the aforesaid crime. Subsequent to registration of crime against the accused persons, the Investigating Officer has conducted investigation and after thorough investigation, laid the charge sheet against the accused persons before the committal Court. Subsequently, the committal Court has passed committal order and committed the case to the Court of Sessions by furnishing the charge sheet materials to the accused Nos.1 to 6 by complying with the stipulated condition of Section 207 of Cr.P.C. Subsequent to committing the case from committal Court to Sessions Court,

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS wherein accused Nos. 1 to 6 have been secured for facing up of trial.

5. Accordingly, the accused persons engaged the services of their respective counsels. Subsequently, heard on charges of the learned SPP-II for the State and defence counsel for accused persons wherein the charges are read over to the accused persons in the kannada language known to them and wherein the accused have not been pleaded guilty but claims to be tried. Accordingly plea of the accused have been recorded separately. Subsequent to recording the charges against accused Nos. 1 to 6 and wherein the prosecution has let in evidence for subject to examination of P.Ws.1 to 20 and got marked documents at Ex.Ps.1 to 27 and four material objects have been seized by the Investigating Officer which are got marked as M.Os. 1 to 4. Subsequent to closure of the evidence on the part of the prosecution wherein the accused have been subjected to examination under Section 313 of Cr.P.C. and all the accused have denied the incriminating evidence appeared against them. The accused have not led any defence evidence. Subsequent to closure of the evidence on the part of the prosecution and the defence, heard the arguments of

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS prosecution and the defence and rendering the judgment of conviction and order of sentence in S.C.No.303/2014 dated 26.10.2017 and the same has been challenged under this appeal by urging various grounds.

6. Heard learned counsel Sri. Dinesh Kumar K Rao for accused No.1, 4 and 6, learned counsel Sri. Rithik for Sri. Suyog Herele E, learned counsel for accused Nos. 2 and 3 and Sri. Jagadeesh H.T., learned counsel for accused No.5 and 6, Sri. Vijayakumar Majage, learned SPP-II for respondent-State in all the appeals. However, the learned S.P.P. No. II has made submission justifying the conviction Judgment rendered by the Trial Court by assigning the reasons and referring the evidence.

7. The learned counsel Sri. Dinesh Kumar K Rao for the accused has taken us through the evidence of P.Ws. 1 to 4 and 7 who are the material witnesses to the case of the prosecution but these witnesses have turned hostile to the case of the prosecution and their statements are got marked as per Ex.Ps.2, 3, 4, 6 and 8. P.W.4 also turned hostile and accordingly, his statement recorded got marked as Ex.P.6. P.W.7 also turned hostile to the case of the prosecution and her

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS statement was also recorded as per Ex.P.8. The prosecution has relied upon the dying declaration of C.W.1. But P.W.17- Doctor admits in his cross-examination that the victim has given high dosage of pain killers, due to the said impact patient was in drowsiness. It goes to show that the victim was not in a fit state of mind to give her statement and she never made any declaration due to sedatives of medicines. It is further submitted that P.W.20-Scintific Office, FSL Department, Bengaluru has stated in his chief examination that she received item No.1 i.e., three liter capacity black colour plastic can with 500 ml of blue colour liquid. But in the seizer mahazar, it is shown as five liter can was seized. As such, there are so many material contradictions and discrepancies in the case of the prosecution.

8. The learned respective counsel for the respective accused has taken us through the evidence of P.W.4 namely Sri. Ramesha H.A., who has admitted in his evidence that the deceased herself has given a statement before him that she herself committed suicide by setting herself ablaze due to mental depression. This evidence has been ignored by the trial judge. Therefore, the prosecution failed to prove the case

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS against the accused persons beyond all reasonable doubt for the offences punishable under Sections 302, 448 read with section 34 of IPC. The alleged incident was taken place on 08.04.2014 and the complaint was given on 09.04.2014 and the FIR said to have been recorded by the investigating agency is submitted to the Court on 10.04.2014. As such, there shall be some inordinate delay in registering the FIR and more so, the prosecution has not sufficiently explained the cause of the delay in registering the FIR against the accused persons. This submissions made by the learned counsel Sri. Dinesh Kumar K Rao are taken on record and so also other respective learned counsel for the other accused.

9. The case of the prosecution is that the victim namely Devika, who is none other than the daughter of accused Nos. 5 and 6, died on 19.04.2014 but incident had taken place on 08.04.2014 and more so, the deceased was alive around 11 days but no where specifically mentioned that how the deceased last her breath and more so, there is no specific evidence on the part of the prosecution relating to death of the Devika due to burning injuries as stated in the statement given by her before the police as well as P.W.11-Taluk Executive

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS Magistrate as per Ex.Ps.11 and 12. It shows that the victim has not given any complaint on 09.04.2014. The complaint has written by the police constable which reveals that appellants/accused persons are innocent persons and they have not at all committed the offences which are reflected in the charge sheet and also reflected in the contents of Ex.P.11- statement of injured victim and also Ex.P.12-dying declaration said to have been recorded by P.W.11-Taluk Executive Magistrate in the presence of the doctor. P.W.17 being a doctor, in his presence the deceased given statement as per Ex.P.12 and the same has been recorded by Taluk Executive Magistrate but the victim was administered with a sedative drug, due to the same, the victim directly suffered drowsiness. It reveals that the victim-Devika was not in fit state of mind to give her statement which is stated in second dying declaration. It is further contended by the learned counsel for the appellant namely Sri. Dinesh Kumar K Rao that even though Ex.P.12 recorded by P.W.11-Taluk Executive Magistrate but the contents of Ex.P.12 runs contrary to Ex.P.11-statement of injured Devika. P.W.17 being a treated doctor and in his presence Ex.P.12-second dying declaration said to have

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS recorded by P.W.11 but the same is contrary to the statement given by victim wherein she has narrated how it has taken place inside the house.

10. P.W.1-Vijaya Kumar a panch witness has turned hostile relating to the contents made in the spot mahazar- Ex.P.1 but spot mahazar was said to have been recorded and drawn by Investigating Officer wherein he has laid the charge sheet against the accused persons. But P.Ws.1 to 3 have turned hostile to the case of the prosecution and also they are disowned their statement at Ex.P.2 to 4. Therefore, their evidence runs contrary to the contents of Ex.P.12-dying declaration of the victim said to have recorded by the Taluk Executive Magistrate. But the Trial Court misinterpreted and rendered the judgment of conviction and order of sentence for the aforesaid offences against the accused Nos. 1 to 6. But accused Nos. 5 and 6 are the parents of the deceased and they were not present at the time of incident and they have gone to the coolie work. P.W.1 had given information to the parents of the injured about the incident and subsequently, they had come to the house and immediately, they took the victim to the

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS to Government Hospital, Konanur in an autorikshaw, later, Arakalagudu General Hospital and thereafter, Government Hospital, Hassan. On 19.04.2014, C.W.1 got discharged from the Government Hospital, Hassan and while she was being taken to Mysore for better treatment, she succumbed to the injuries on the way to the hospital. As such, the P.W.1 has turned hostile to the case of the prosecution.

11. Whereas the learned counsel Sri. Dinesh Kumar K Rao for the appellant inclusive of other respective counsel specifically taken us through the evidence of P.Ws.2 to 6 but they have been categorically stated in their evidence that the dead body of Devika was burnt. It is an admitted fact that Devika who had given a statement as per Ex.P.11 and based upon her statement, a criminal law was set into motion for the aforesaid offence but subsequent to her death, only the offence under Section 302 of IPC has been included in the concerned FIR but the injured Devika had sustained burning injury to the extent of 70-75% and she should have died due to septimicia as she was sustaining burning injuries. If at all, the post mortem examination was conducted by the Medical

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS Officer, the said fact should have bee revealed. But accused Nos. 1 to 6 have not given any scope for the same and destroyed the evidence. Accused Nos. 5 and 6 were not involved in the commission of offence of murder of their daughter. Accused Nos.5 and 6 made their efforts to save the life of their daughter by admitting her in the hospital immediately after the incident. But only on the strength of the dying declaration, the criminal law was set into motion by recording a FIR in Cr.No.98/2014 initially for the offences punishable under Section 448 and 307 read with Section 34 of IPC but the theory of prosecution reveals that as on 09.04.2014 around 9.00 am, C.W.1 Devika had present in her house and accused Nos. 1 to 4 had trespassed into the house and picked up quarrel with her on the ground that deceased Devika was fell in love with one Rajegowda and with an intention to eliminate her, they have doused the kerosene on her and set her ablaze, due to which, she sustained burning injuries. Despite providing treatment, she succumbed to the burning injuries on the way to the hospital, Mysuru. The Investigating Officer has not made any venture to cite Rajegowda as a witness since the deceased Devika fell in love with Rajegowda.

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS accused Nos. 1 to 4 who none other than the grand mother, aunt and uncle of the deceased Devika respectively and accused Nos. 5 and 6 are the parents of the deceased Devika who have taken initiative to take the victim to the Government Hospital in an autorikshaw immediately and thereafter, for better treatment, she has been taken to Mysore but she was died on the way to the hospital due to the burning injuries. Therefore, Ex.P.11 cannot be believable.

12. while she was taken treatment to Konanur hospital, i.e., on 09.04.2014, the respondent police have recorded the statement of victim in the presence of the doctor and also in the presence of the women constable as per Ex.P.11 and also obtained certificate that victim Devika was in a fit state of mind to give her statement. But based on the said statement, criminal law was set into motion by registering a FIR against the accused persons for the offence punishable under Section 307 and 448 read with Section 34 of IPC. But she succumbed to injuries on 19.04.2014 after lapse of 11 days. After the death of injured Devika, the offence under Section 302 of IPC was included in the FIR but for the delay of inclusive of the said

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS offence in the FIR has not been properly explained. Accused Nos. 1 to 4 who are present at the time of crime in the scene of occurrence has narrated in the charge sheet and even accused Nos. 5 and 6 were not present in their house at the time of incident but they have been alleged as a accused persons as the dead body of Devika was burnt in their field without inform the police. Therefore, the offence under Section 201 of IPC has been lugged against accused Nos. 5 and 6. However, the offences under section 34 of IPC is a common intention to commit offence in order to eliminate deceased Devika as she was having love affair with one Rajegowda but Rajegowda has not been made as a witness to the case of the prosecution and investigating agency has not made any venturing to record his evidence or even during the course of the trial. The prosecution has not made relevant provision under Criminal Code of Procedure to secure his evidence on the part of prosecution to prove the guilt of the accused.

13. The defense counsel of the accused persons have vehemently contend that the case is based on circumstantial evidence and motive which will play vital role in order to secure

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS conviction for the offence punishable under Section 448 and 302 read with 34 of IPC. Accused Nos. 1 to 4 alleged to have been commit the murder of deceased Devika, by dousing kerosene on her and also set her ablaze and due to that, she sustained burning injuries and statement of victim was taken by the police as per Ex.P.11 which has been termed as dying declaration, subsequent to the death of the deceased Devika second dying declaration recorded by the P.W.11-Taluk Executive Magistrate in the presence of the doctor. But original documents at Ex.P.11 and 12 are required to be analyzing in the matters and whereby challenging the judgment of conviction and order of sentence which is based upon the dying declarations at Ex.Ps.11 and 12. Wherein she has stated that due to alleged old enmity with her mother, the accused have committed the said act of dousing kerosene on her and lit the fire and made her to set ablaze. When the said motive as set up by the prosecution, itself is not proved with cogent evidence. Hence, the accused are entitled for acquittal. The first dying declaration alleged to have recorded by the police official P.W.15-Sudhakara B.N., on 09.04.2014 between 1.00 am to 2.00 am, the P.W.15 has submitted requisition to the Medical

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS Officer-P.W.17 vide Ex.P.15, wherein he has mentioned the name of accused Nos.1 to 4 in the said requisition itself. At that time, the deceased has not given any dying declaration before P.W.15. The prosecution has not explained as to how P.W.15 came to know abut the alleged overt act of the accused Nos. 1 to 4. Therefore, the alleged dying declaration is not voluntary. The deceased if at all having the alleged motive of love affair with one Raje Gowda, she should have stated the same before P.W.15 and P.W.11. P.W.17-Doctor has not endorsed on the dying declaration-Ex.P.11 that deceased Devika was in fit state of mind to give her statement. The signature one finding place in the dying declaration recorded by the Taluk Executive Magistrate vide Ex.P.12 is not pertaining to P.W.17 but somebody have affixed the signature on behalf of the said doctor on the next date of alleged recording of dying declaration i.e,. on 11.04.2014 and though alleged dying declaration alleged to have recorded by Taluk Executive Magistrate on 10.04.2014 is in question and answer form, but it is strange to believe that the said dying declaration that victim has stated that she sustained burnt injuries to an extent of 62% to 65%. Therefore, Ex.P.11 cannot be believable as it is

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS not voluntary, truthful and prompting one. This Contention has taken by the learned counsel for the appellant Dinesh Kumar Rao respectively and so also learned counsel, Suyoug Herele, and learned counsel Vijay Kumar T and learned counsel Jagadish H.T. But learned counsel Jagadish H.T. specially contended in respect of accused Nos. 5 and 6 who are the parents of deceased Devika but there is no specific evidence facilitated by the prosecution in order to secure the conviction against the aforesaid accused but dying declaration recorded by the P.W.11-Taluk Executive Magistrate in the presence of the P.W.17 which is in the form of questions and answers but it is stated to believe that the said dying declaration that she had sustained burning injuries to the extent of 62-65%. Therefore, initial statement given by the deceased in not believable.

14. P.W.3 who is none other than wife of P.W.1-Vijay Kumar has stated that the deceased Devika has died about three years back and she came to know from the neighbours that Devika was set ablaze. She had been to scene of crime and saw that since her body was burnt, her parents taken her in an autorikshaw to the hospital for treatment and deceased

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS was died after 8-10 days when she was shifted to Mysore from Hassan Hospital. Subsequently, the deceased Devika burnt without taking her to the hospital again. Because this reasons section 201 of IPC has been included in the FIR whereas the evidence of P.W.3 reveals as she does not know how come into contact with deceased but the evidence of P.W.3 does not corroborate the evidence of P.W.9, 15, 17 that the deceased Devika was fit state of mind to give her statement i.e., initial statement at Ex.P.11 and based upon the same, criminal law set into motion by recording FIR but another statement given by deceased Devika which is marked Ex.P.12 which is recorded by Taluk Executive Magistrate before the P.W.17. As such, there is a doubt created in a theory set up by the prosecution whether deceased Devika was in a mentally fitted condition to give her statement as per Ex.P.11 and Ex.P.12.

15. P.W.4 Ramesh has deposed before this Court that deceased Devika has died about two years ago due to burnt injuries as she was setting ablaze. When he had been to her house, the fire was extinguished and she was lying down and she was in a position to talk, when he had been to the said spot

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS and P.W.3, neighbors and the accused were also present at the spot. When P.W.4 asked deceased Devika, how it was happened, she told she has got set herself ablaze due to mental depression. He has sent Devika in an autorikshaw to the hospital at konanur along with her parents. Devika was admitted to the hospital at Hassan, at that time also , Devika was in a position to talk. He came to know that Devika had died after eight to ten days on the way to the hospital, Mysore. Immediately, she was cremated in the village. P.W.4 put his signature as per Ex.P.5 at the spot where she was set her ablaze and collected some ash in a box from the place where deceased Devika was burnt which is identified as M.O.3. P.W.4 was subjected to cross-examination nothing has been elicited form his evidence. Ex.P.6 indicates that deceased Devika was having love affair with one Raje Gowda, the accused Nos. 1 to 4 have abused her stating that she is lowering their reputation and accused No.1 has doused kerosene over person and accused No4 has lit the fire. But P.W.4 who has subjected to cross-examination on the part of the prosecution but nothing worthwhile has been elicited from his evidence.

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS

16. The theory of prosecution is taken into consideration, the offence under section 34 of IPC has been lugged against the accused wherein the word in furtherance with the common intention to all do not subsequently exists in the ordinary Court but the section 34 of IPC is only role of evidence and it does not creates substantive offences which means if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually".. The existence of common intention among the participants in a crime is essential elements for a situation of this section it acts done by several person in furtherance of common intention but in the instant case accused Nos. 1 to 4 are present in the scene of crime and picked up quarrel with the deceased Devika as she was fell in love with the Rajegowda and she was lowering their reputation in the eye of the society and saying so, they dousing kerosene over on person and set her ablaze due to which she sustained burning injuries. Even though she sustained burning injuries and at the time of recording initial statement at Ex.P.11 and dying declaration at Ex.P.12 but the prosecution has not been facilitated worth while evidence to secure the conviction relating to the offence under section 302

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS of IPC and even the offence under section 201 of IPC in respect of accused Nos. 5 and 6.

17. In this case, it is required to analyze the evidence relating to motive factor. Even though it is not essential for the prosecution to establish the motive factor against the accused in all case, but at some time it cannot be given to gainsaid that without adequate motive speaking normally, none is expected to take life of another human being. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assigning the evidence. But the circumstances proving the guilt of the accused are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to certain course of action.

18. Insofar as dying declaration, the manner of recording dying declaration is doubtful and it cannot be relied upon the substantive conviction of the accused as under

Section 302 of IPC, 1860. In the instant case, the initial statement of the deceased has recorded at Ex.P11 and

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS subsequent statement has been recorded at Ex.P12. Ex.P12 has been recorded by PW.11 who is the Taluk Executive Magistrate in the presence of PW.17 - Doctor.

19. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. The dying declaration does not reveal entire truth, and it has to be considered only as a piece of evidence on which event conviction cannot be rested solely on the basis of such doubtful dying declaration. If the dying declaration was recorded in presence of the relatives of the deceased the possibility that the deceased was tutored cannot be ruled out.

20. The Court must be 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, but 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

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS of prudence. If a dying declaration is very important document because it amounts to a statement of the deceased verba dicta. The dying declaration cannot be treated as a wholly trustworthy as it is shrouded by many doubts. The Court must satisfy that the deceased was in the state of mind after clear opportunity to observe and identify the assailant. But the dying declaration should be carefully scrutinized.

21. In the instant case, it is relevant to address the issues in respect of the circumstantial evidence. In case of the circumstantial evidence motive factor bears the important significance. Motive always locks-up in the mind of the accused and sometime it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. But the law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests :

I. the Circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS II. the Circumstances should be of definite tendency unerringly pointing towards guilt of the accused. III. the Circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and IV. the Circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

22. Further, it is relevant to refer the scope of suspicion. Suspicion, however grave it may be, cannot take the place of poof. In the instant case, there can be no doubt that the circumstances raise a serious suspicion against the respondent. Therefore, the medical evidence on both sides is more or less equally balanced and that being the position, the benefit of doubt must go to the accused. The evidence of PW.11 being the Taluk Executive Magistrate who has recorded

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS second dying declaration of the deceased - Devika in the presence of PW.17 - Doctor. Mere because recovery of certain parts of ashes from the place where the dead body of the deceased was burnt and that ash particles has been secured by investigating officer. But there is no worthwhile evidence let in by the prosecution to prove the guilt of the accused.

23. The chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner being impeached by cross- examination and which evidence gets support from the medical evidence that, the death occurred on the account of the burning injuries inflicted upon the deceased - Devika by pouring kerosene over the person and set her ablaze. The evidence of the prosecution witnesses are found to be disbelieved, and it is found that the remains hardly any circumstance against the accused to connect them against the crime. But it is not possible to uphold the conviction of the appellant on wholly unreliable and limping evidence. But the evidence is clinching and clearly implicates the accused persons are causing for

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS infliction of burning injuries over the person of the deceased - Devika.

24. In the instant case, it is relevant to refer the judgment rendered by the Hon'ble Supreme of India in CRL.A.No.25/2012 Ram Niwas Vs. State of Haryana. It is also relevant to refer the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in 1984 SCC 116 rendered by the Hon'ble Supreme Court of India wherein para No.152 which reads as under :

'Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Vs. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to- date, for instance, the cases of Tufail (Alias) Simmi Vs. State of Uttar Pradesh and Ramgopal Vs. State of Maharashtra. It may be useful to extract what Mahajan, J has laid down in Hanumant case:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far completer as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.' Para No.153 of the said judgment reads as under:

'A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade Vs. State of Maharashtra where the following observations were made : (SCC Para 19, p.807: SCC (Crl) p.1047) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.'

25. Para No.154 of the said judgment reads as 'These five golden principles, if we may say so, constitute the panchsheel of the proof of the case based on circumstantial evidence'.

26. The Court has held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. If the circumstances proved in the case are consistent either the innocence of the accused or with his

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS guilt, then the accused is entitled to the benefit of doubt. It has been that the circumstances would be conclusive nature and tendency. The Court has also held that circumstances should exclude every possible hypothesis except the one to be proved. It is settled law that the suspicion however so strong it may cannot be taken to prove the guilt beyond all reasonable doubt. The accused cannot be convicted on the ground of suspicion, no matter how so strong it is, the accused is presumed to be innocent unless the guilt is proved beyond all reasonable doubt.

27. In the present case, we find that the prosecution has relied upon the circumstantial evidence and also contents of Ex.P11 which is the statement given the deceased - Devika and based upon the said statement criminal law was set into motion and subsequently second dying declaration has been recorded by the PW.11 who is the Taluk Executive Magistrate. Contents of Ex.P11 and Ex.P12 are contrary to the evidence of PW.1 to 6 and also contrary to the evidence of PW.11, 15, 16 and 18. PW.18 is the investigating officer who laid down the charge sheet against the accused.

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS

28. In the instant case, the prosecution has miserably failed to establish the chain of events which is said to be exclusively lead to the conclusion i.e the guilt of the accused. In that view of the matter, we are of the view that we find that the judgment of conviction and order of sentence rendered by the Trial Court is not sustainable. Therefore, in view of the aforesaid reasons and findings, we are of the considered opinion that even through the prosecution had let in the evidence and examined several documents, but the prosecution has not facilitated the possible and acceptable evidence to secure conviction. Therefore, the evidence let in by the prosecution is found to be doubtful and when doubt has arisen in the mind of the Court, the benefit of such doubt shall be extended in favour of the accused alone. Hence, we proceed to pass the following :

ORDER The appeals preferred by appellant / accused in Crl.A.No.2140/2017, Crl.A.No.1979/2017, Crl.A.No.2001/2017, Crl.A.No.2045/2017, Crl.A.No.29/2018, Crl.A.No.155/2018 under Section 374(2) of Cr.P.C are hereby allowed. Consequently, the judgment of conviction and order of

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NC: 2024:KHC:40183-DB CRL.A No. 2140 of 2017 C/W CRL.A No. 1979 of 2017 CRL.A No. 2001 of 2017 AND 3 OTHERS sentence dated 26.10.2017 rendered by the Trial Court in S.C.No.303/2014 is hereby set aside. Consequence upon setting aside the said judgment of conviction and order of sentence, accused Nos.1 to 6 convicted respectively are hereby acquitted for the offences punishable under Sections 302 and 201 r/w 34 of IPC.

In Crl.A.No.29/2018, accused namely H.J.Thyagaraju is in incarceration. Therefore, Registry of this Court is directed to forward a copy of the operative portion of the judgment to the concerned Jail Authority where the appellant / accused is housed with a direction to set him at liberty forthwith, if he is not required in any other case.

Ordered accordingly.

Sd/-

(K.SOMASHEKAR) JUDGE Sd/-

(S RACHAIAH) JUDGE JS List No.: 1 Sl No.: 16

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