Karnataka High Court
Somashekar vs The State Of Karnataka on 22 July, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JULY, 2019
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE BELLUNKE A.S.
Crl.A.No.100154 of 2016 [C]
BETWEEN :
1. SOMASHEKAR S/O NAGAYYA GALAGALIMATH,
AGE:30 YEARS, OCC. AGRICULTURE,
2. PREMA W/O NAGAYYA GALAGALIMATH,
AGE:50 YEARS OCC. HOUSEHOLD,
BOTH ARE R/O KERAKALAMATTI
TQ. BADAMI, DIST. BAGALKOT
... APPELLANTS
(BY SMT.SUNITHA P.KALSOOR, ADVOCATE)
AND :
THE STATE OF KARNATAKA,
REP. BY KERUR POLICE STATION,
REPL BY SPP, DHARWAD BENCH, DHARWAD
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER PASSED BY THE PRL. DISTRICT & SESSIONS
JUDGE, BAGALKOT IN S.C.NO.78/2013 DATED 12.05.2016.
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, ARAVIND KUMAR J., DELIVERED THE
FOLLOWING:
:2:
JUDGMENT
Appellants, who are arraigned as accused Nos.1 and 2 in S.C.No.78/2013, who faced trial for the offences punishable under Sections 498A, 304B and 302 read with Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 read with Section 34 of IPC came to be tried by the learned Principal District and Sessions Judge, Bagalkot in S.C.No.78/2013 and after full-fledged trial, came to be convicted for said offences and have been sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.10,000/- each for the offence punishable under Section 304B of IPC, and in default to pay the fine amount, they shall undergo simple imprisonment for a further period of six (6) months. They have also been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 of IPC and with default sentence of six (6) months simple imprisonment was imposed. They are further sentenced to undergo simple imprisonment for six (6) months for :3: the offence punishable under Section 4 of the Dowry Prohibition Act and held that all the sentences so imposed shall run concurrently. Hence, present appeal has been filed by them under Section 374 Cr.P.C.
2. Facts leading to filing of the charge sheet and consequential conviction are as follows:
Accused No.1 married deceased Roopa on 16.04.2012. It was alleged that at the time of her marriage, parents of the deceased had given Rs.51,000/- in cash, four and a half tolas gold to accused No.1 as dowry; it was further alleged that from the date of her marriage, accused persons were subjecting her to physical and mental torture, resulting in cruelty being perpetrated on her and were making constant demand to bring further dowry and gold from her parental home; it was also alleged that when deceased was seven months pregnant, a seemantha function was to be held on 08.07.2013 and at that point of time, accused persons had demanded her to bring ten tolas of gold and a silver :4: plate from her parental home and on discussion being held by the parents of the deceased with the elders of the village , a decision was arrived that parents of Mrs.Roopa would give four tolas of gold instead of 10 tolas gold; on account of said demand not being met, seemantha function was not allowed to be held. It was further stated that husband and mother-in-law of Mrs.Roopa were unhappy and she had returned from her parental home to her matrimonial home on 27.06.2013. It is the further case of the prosecution that on 27.06.2013 i.e., the day previous to the date of alleged incident, accused had abused the deceased and had physically assaulted her whole night on the ground that her parents having agreed to give ten tolas gold for the seemantha function, she had brought only four tolas gold and as such being enraged by the same at about 5:30 a.m. in the farm house, the accused persons had poured kerosene on her and set her ablaze, as a result, she started screaming, fell down on the ground and rolled over the ground due to which she was engulfed in fire; :5: she sustained burn injuries from her toes to her face and as such, she was admitted to Kumareshwara Hospital at Bagalkot with burn injuries. The statement of the deceased came to be recorded by PW19 after ascertaining from PW20 that she was in a position to give her statement and obtained an endorsement from PW20 certifying that she was fit to give her statement. Her statement came to be recorded by the Taluka Executive Magistrate, PW18 as per Ex.P27 and the complaint as per Ex.P20 received by PW19 written through PW12, resulted in complaint being registered as FIR and PW22 took up the investigation. It is further the case of the prosecution that PW22 visited the Hospital, recorded further statement of the deceased and thereafter visited the scene of offence, seized the burnt pieces of petticoat of the deceased lying at the spot under spot mahazar-Ex.P1 and handed over further investigation to PW23, the Dy.S.P., Bagalkot. On account of injuries sustained, deceased Roopa is said to have expired on 29.06.2013 at about 6:30 p.m. while under :6: treatment at the Hospital. Hence, PW18 conducted the inquest panchanama of the dead body as per Ex.P4 and the Doctor-PW17, who conducted postmortem as per Ex.P26 had opined that cause of death was due to neurogenic shock as a result of 90-95% superficial to deep ante-mortem flame injuries sustained. On completion of investigation, PW23, Dy.S.P., Bagalkot filed charge sheet against the accused persons for the offences punishable under Sections 498A, 304B, and 302 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act read with Section 34 of IPC.
On committal order being passed, jurisdictional Sessions Court took up the matter for trial and on behalf of the prosecution, 23 witnesses were examined as PW1 to PW23 and in all 32 documents were marked as Exs.P1 to P32 and material object MO1 was marked; the statement of the accused was recorded under Section 313 of Cr.P.C., which was total denial and no evidence was tendered on behalf of the defence. The learned Sessions Judge after having formulated the points for its :7: determination as reflected in paragraph No.6 of the judgment, answered point Nos.1 to 3 and 5 in the affirmative and point No.4 in the negative based on the evidence on record and held that accused persons are guilty of the offences as noticed herein above. Hence, this appeal.
3. We have heard the arguments of Smt.Sunita P.Kalasoor, learned advocate appearing for the appellants and learned Additional SPP appearing for the State.
4. It is the contention of Smt.Sunita P.Kalasoor that trial Court has not examined the material omissions and contradictions in the evidence of prosecution and has twisted the evidence so as to suit the case of the prosecution, which has resulted in great prejudice to the appellants; she contends that entire judgment when read in the context of material evidence available on record, it would clearly indicate that learned Sessions Judge has convicted the accused based on two dying declarations, :8: which came to be marked as Exs.P20 and P27. She would further contend that Ex.P20, which is said to have been recorded by PW19, PSI and the scribe of the said dying declaration being PW12 (maternal uncle of the deceased), has not supported the case of the prosecution and as such she contends that Ex.P20 could not have been relied upon as recorded in the normal course. Hence, she has prayed for the judgment passed by the learned Sessions Judge being set aside. She would also contend that the another dying declaration recorded by PW18 at Ex.P27, was not written by PW18, but written by one Second Division Assistant in the Office of the Tahasildar (Executive Magistrate), who undisputedly had not been examined and the evidence of PW18 would partake the characteristic of hearsay evidence and she would also draw the attention of this Court to the evidence of PW20, who is said to have signed Ex.P27 certifying thereunder that deceased was in a fit mental condition to make her statement and who has stated that he had not seen the deceased before certifying her :9: mental and physical conditions and based on the message received over phone from the Nurse, who is said to have attended to the deceased and certified about the mental condition of deceased and as such, it was incumbent upon the investigating Officer, who recorded the statement of the said Nurse and examined her as prosecution witness since she is said to have made a statement before the Doctor (PW20) about mental condition of the deceased and this exercise having not been undertaken by the prosecution, Ex.P27 out not to have been believed. Hence, on this ground also, she seeks for judgment passed by the learned Sessions Judge being set aside.
5. She would also draw our attention to the evidence of PW18 to contend that there was no proof for requisition for having sent by the jurisdictional Police to the Government hospital for recording dying declaration and Doctor had not certified the condition of the person making the statement was mentally capable and even time is also not indicated in Ex.P27 and as such, : 10 : evidence of PW18 who is said to have recorded Ex.P27 taken the character of hearsay evidence and same should not have been eschewed. Hence, contending that contradictions and omissions being writ large she prays for acquitting the appellants. In support of her submission she has relied upon the following judgment.
1. (2019) 2 SCC (Crl) 351, in the case of Ripudaman Singh V/s. Balkrishna.
2. (2019) 4 SCC 739, in the case of Sampat Babso Kale and another V/s. State of Maharashtra.
6. Per contra, the learned Additional SPP would support the judgment and order of sentence passed by learned Sessions Court and would contend that mere absence of certificate from the Doctor regarding mental fitness of the maker of the statement by itself would not erode the contents of a dying declaration. If corroborating evidence is available on record and satisfies the conscious of the court person who made the statement is to be presumed to be in a fit condition. As such, by relying upon : 11 : the judgment of the Hon'ble Apex Court, reported in AIR 2002 SC 2973 and he seeks for dismissing the appeal.
7. Having heard learned Advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered opinion that following points would arise for our consideration.
1. Whether judgment dated 12.05.2016 passed in S.C.No.78/2013 convicting the accused-appellants herein for the offence punishable under Section 498A, 304B, 302 r/w. Section 34 of IPC and Section 4 of the Dowry Prohibition Act, 1961 r/w Section 34 of IPC is to be sustained, set aside or modified?
2. What order?
8. There is no dispute to the fact that deceased Smt. Roopa having married accused No.1 on 16.04.2012. It is also not in dispute that at the time of her demise on : 12 : 29.06.2013 she was 7 months pregnant. As could be seen from the judgment of learned Sessions Judge the prosecution has very heavily relied upon the dying declaration of deceased Roopa namely Exs.P.20 and P.27.
9. Before we proceed to examine the finding recorded by the learned Sessions Judge on Exs.P.20 and P.27, we are of the considered view that it would be apt and appropriate to notice the case of the prosecution, namely it was the specific case of the prosecution that the deceased was harassed by her mother-in-law and her husband with a demand for dowry and about 15 days prior to the date of incident a Seemantha function to be held and at that point of time there was a demand by the accused persons to the deceased demanding 10 tholas of gold. It is further alleged by the prosecution that on account of gold demanded by the accused persons having not been met, Seemantha function was not held. It is appropriate to note at this juncture itself that the parents of the deceased have been examined as PW10 and 16. : 13 : The cousin brother of deceased has also been examined as PW11 and none have supported the case of prosecution.
10. PW12 and 13 who are the relatives of PW10 have also not supported the case of prosecution. In fact, all the relatives of the deceased namely, PW10 to 13 and 15 have denied the version of the prosecution and in fact PW15 - mother of the deceased whom the prosecution claimed was available at the time of dying declaration being recorded by PW18, has denied this fact in her evidence. In fact, none of these witnesses have supported the case of prosecution and have denied the entire case of the prosecution.
11. PW16 - father-in-law of first accused i.e., father of deceased has also turned hostile. In fact, nothing worthwhile has been elicited in his cross examination and as such, prosecution has made a valiant attempt to restrict its case by relying very heavily on Exs.P20 and P27 namely the dying declaration. Both the dying declarations are said to have been recorded on the same day. Ex.P27 is said to : 14 : have been recorded at 9.00 A.M. on 28.06.2013 by PW18. Whereas Ex.P.20 is said to have been recorded by PW12 at 11.30 A.M. on the same day according to prosecution. The dying declaration Ex.P20 was written down by the scribe PW12. It is in this background the relevancy of these two (2) dying declarations requires to be examined.
12. Smt. Sunita Kalasoor, learned counsel appearing for the appellants has vehemently contended before us that deceased had suffered 90 to 95 burns all over the body and as such, deceased was not in a mental state of mind to make any statement before the Doctor or before the Taluka Magistrate-PW18. Hence, she has sought for these two dying declarations being discarded.
13. In the case of Rambai V/s. State of Chhattisgarh, reported in 2002 SCC 83, Hon'ble Apex Court has held that physical state of injuries on the declarant by themselves would not be determinative of mental fitness of a declarant to make statement. Mental fitness can be ascertained from the opinion of the Doctor : 15 : and/or from the testimony of the witnesses and surrounding circumstances. In the case of RAMBAI, victim had suffered 85% burn injuries and Doctor certification about mental fitness of the injured to make a statement was of great importance and accepted. The duty Doctor was examined though she had not treated the injured and certified about mental condition of the deceased to make a statement. It is he, who had certified about the mental condition of the person making dying declaration. Thus, from the narration of question posed to deceased and answers elicited as reflected in the dying declaration it was clear that deceased was in a fit state of mind to make statement and as such the Hon'ble Apex Court in the said case held, it would not be unsafe to place reliance on the dying declaration. It came to be held to the following effect:
"A. Evidence Act, 1872 - S.32 - Dying declaration - Physical state of or injuries on the declarant not by themselves determinative of mental fitness of the declarant to make the statement - Mental : 16 : fitness can be ascertained from opinion of doctor or from testimony of witnesses and surrounding circumstances - Victim suffering 85% burn injuries - Doctor's certificate about mental fitness of the injured to make the statement - Doctor on duty, even though he had not treated the injured, came on being summoned and examined the injured and noted in the dying declaration itself that deceased was in a fit mental condition to make a dying declaration - From the narration of question answers in the dying declaration also it was clear that deceased was in a fit state of mind to make the statement - On perusal of evidence of the said doctor as also that of two PWs who had recorded the dying declaration, it was clear that the deceased at the time of making of the dying declaration was in a fit condition of mind to make the statement - In absence of any discrepancy in the statement of the deceased, held, the same has to be accepted - In the circumstances, it is not possible to accept the submission that it would be unsafe to place reliance on the dying declaration if its contents are : 17 : examined in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission into the hospital she was alternating between consciousness and unconsciousness, as also that earlier attempts to record her dying declaration had failed B. Evidence Act, 1872 - S.32 - Dying declaration - Absence of doctor's certificate about mental fitness of deceased to make the statement."
14. Same is the ratio in the case of Jai Prakash and others V/s. State of Haryana, reported in AIR 1999 SC 3361, the basis on which a conviction can be sustained, where the prosecution relied upon dying declaration, it came to be held that it would all depend on facts and circumstances of each case. The nature of injury sustained by itself would not be a factor either to accept it or reject it. It is the mental condition of the person, who makes the statement which would be utmost important and also deciding factor as to the acceptability or otherwise of the dying declaration. Thus, certification by the Doctor : 18 : about the mental ability of the deceased to make statement would be an important factor, that too in a given case where such person who has suffered 80.85% burn injuries and having been hospitalized is making a declaration.
15. It is not necessary that absence of certification by doctor by itself would be fatal to accept the dying declaration. This view is fortified by the judgment of Hon'ble Apex Court rendered in the matter of SHAIRSHING vs STATE OF PANJAB, reported in 2008 SCC 783. The judgment of the Hon'ble Apex Court in the case of Laxman V/s. State of Maharashtra reported in AIR 2002 SC 2973 can also be looked up for this proposition. In the absence of reliable evidence placed by the prosecution to accept the dying declaration the proper course would be to acquit the accused.
16. The co-ordinate Bench in the case of State of Karnataka V/s. Basavaraj and another reported in 2002 Criminal Law Journal 483 has held where no : 19 : endorsement was found on the dying declaration that the deceased was mentally and physically fit to give or make statement would be a ground on which accused can be acquitted.
17. In the matter of Ramilaben Hasmukhbhai Khristi and another V/s. State of Gujarat and connected matters, reported in AIR 2002 SC 2996, it has been held by the Hon'ble Apex Court that allegation of murder was made against the accused and conviction was based on dying declaration of the deceased, who had alleged that accused had sprinkled kerosene and had set her ablaze and thereby deceased received second degree burn and died within 7 to 8 hours of the incident. Thus, factors which requires to be considered while relying upon dying declaration would be, the nature of injuries sustained, treatment extended, physical and mental condition at the time of dying declaration recorded as well as circumstances under which such declaration came to be recorded. In this background, when the condition of deceased at the time of hospitalization was examined in : 20 : the said case on the basis of medical records, it was disclosed physical condition of the deceased was not good, pulse rate was feeble and consecutive four dying declaration having been recorded which raised a doubt about such declaration having been made and that too not supported by medical evidence. In these circumstances, declaration so made by the deceased was held by Apex Court that it would not inspire confidence and held, conviction based solely on the dying declaration cannot be sustained. In this background, allegation made against the appellants in the instant case requires to be examined by us. For the offence alleged i.e., 302 and 304B, prosecution has relied upon the dying declaration Ex.P27 which has been accepted by learned Sessions Judge. In Ex.P27 as already noticed herein above is said to have been recorded on 28.06.2013 at 9.00 A.M. by Executive Magistrate PW18. No requisition is given by the police to PW18 requesting her to record the statement of deceased. The entry and exit register or the inward and outward register of the visitors to Kumareshwar Hospital, Bagalkot, was not : 21 : produced to prove the presence of PW18 visiting the hospital. In fact, PW18 in her deposition has admitted that she is not the scribe of Ex.P27. She also admit that it was recorded by the Second Division Assistant working in the office of Tahasildar. However, prosecution has not examined the Second Division Assistant, who is alleged to have recorded the dying declaration of deceased Roopa. No evidence has been tendered by the prosecution to prove the presence of P.W.18 at the hospital. Infact, the time at which Ex.P-27 came to be recorded by P.W.18 is not reflected in the dying declaration Ex.P-27.
18. In fact one another intriguing factor which cannot go unnoticed is State has relied upon endorsement made by Doctor - P.W.18 with regard to mental condition of deceased Roopa. Doctor - P.W.20 who came to be examined by prosecution to prove the contents of Ex.P27 admits that he had not seen the deceased Roopa or verified her mental and physical condition and her mental capability or capacity to make statement. On the other hand, he states that he telephoned to the nurse who was : 22 : attending to deceased Roopa in the ward to ascertain her condition and on the assurance given by said nurse certifying that deceased Roopa was in a fit mental condition to make statement, he had endorsed on Ex.P27 about her mental condition as per Ex.P27(c). However, in the cross examination dated 07.11.2014, he has denied the endorsement made in the dying declaration which came to be marked as Ex.P27(c). In fact, he was unable to identify the hand writing of the person who made such endorsement. He has also deposed that he was never present when the dying declaration - Ex.P-27 came to be recorded. To the suggestion that he had not seen the deceased and without examining her he had certified about her mental condition, he admits the suggestion made to him in his cross examination dated 05.09.2015. In his own words admission reads as under:
"£Á£ÀÄ gÉÆÃVAiÀÄ£ÀÄß ¥ÀjÃQë¸ÀzÉà CªÀ¼ÀÄ ºÉýPÉ PÉÆqÀĪÀ ¹ÜwAiÀÄ°è EgÀĪÀ¼ÀÄ JAzÀÄ µÀgÁªÀ£ÀÄß §gÉzÀÄPÉÆnÖgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ gÉÆÃVAiÀÄÄ PÁådªÉ°Ö ªÁqÀð¤AzÀ DUÀ¯Éà ¸ÀÄlÖ UÁAiÀÄUÀ¼À ªÁqÀðUÉ ¸ÀܼÁAvÀgÀªÁVzÀÝjAzÀ DPÉAiÀÄÄ : 23 : ºÉýPÉ PÉÆqÀĪÀ ¹ÜwAiÀÄ°è EgÀĪÀ¼Á JAzÀÄ £Á£ÀÄ C°è PÁAiÀÄð¤ªÀð»¸ÀÄwÛzÀÝ £À¸ïðUÉ ¥ÉÆãÁ¬Ä¹ w½zÀÄPÉÆAqÀÄ ¤±Á£É ¦30(¹)zÀAvÉ µÀgÁªÀ£ÀÄß §gÉ¢gÀÄvÉÛÃ£É JAzÀÄ £ÀĹAiÀÄÄvÁÛgÉ. ¤±Á£É ¦30(¹)J°è zÀ°è £Á£ÀÄ £À¸ÀðUÉ ¥ÉÆãÁ¬Ä¹ gÉÆÃVAiÀÄÄ ºÉýPÉ PÉÆqÀĪÀ ¹ÜwAiÀÄ°è EgÀĪÀ¼ÀÄ JAzÀÄ w½zÀÄPÉÆAqÀÄ µÀgÁªÀ£ÀÄß §gÉ¢gÀÄvÉÛãÉ."
19. Thus, heavy burden was on the prosecution to prove the contents of dying declaration - Ex.P27 and same has remained as a document without proof. Thus, we say so for the simple reason that Doctor who had deposed that nurse had certified the mental condition of the deceased, the least expected of the prosecution was to examine the nurse. In fact, the Investigation Officer had not even recorded the statement of the nurse who is said to have certified the mental condition of deceased Roopa. On this score alone contents of Ex.P27 cannot be accepted as having been recorded by P.W.18. Doctor - PW20 has stated that he has signed Ex.P27 in his chamber. PW18 who claims to be the author of Ex.P27 in her cross examination dated 21.10.2014 admits that contents of : 24 : Ex.P-27 is not in her hand writing. Her admission reads as under.
"¤±Á£É ¦ 27 gÀ°ègÀĪÀ PÉÊ §gÀºÀ £À£ÀßzÀ®è. £ÀªÀÄä PÉøÀ ªÀPÀðgÀ J¸À r J §gÉ¢gÀÄvÁÛgÉ. ¤±Á£É ¦ 27 §gÉAiÀÄĪÀ ¸ÀAzÀ¨sÀðzÀ°è gÀÆ¥Á¼À vÀAzÉ vÁ¬Ä EzÀÝgÀÄ. ¸ÀzÀj ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ gÀÆ¥Á¼À vÀAzÉ vÁ¬Ä EªÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁrzÉ£ÀÄ. CªÀgÀÄUÀ¼ÀÄ §ºÀ¼À zÀÄ:RzÀ°èzÀÝgÀÄ JAzÀgÉ ¸Àj."
20. PW18 has deposed that when Ex.P27 was recorded her parents were present. It would be apt to notice at this juncture itself the evidence of parents of the deceased namely PW10 and 15 who have categorically stated that they were not present when Ex.P27 was recorded and they are not aware about the contents of Ex.P27. As already noticed herein above, Ex.P27 according to PW18 having been written down by Second Division Assistant working in her (P.W.18) office has neither affixed his signature as scribe to Ex.P27 nor to prove the mental condition of the maker of the dying declaration - Ex.P-27 : 25 : he was examined. Thus, there is no corroborative evidence to prove contents of Ex.P27.
21. In fact, on perusal of Ex.P27 it would disclose that it is in the form of question and answer, though it cannot be found fault with, fact remains that it cannot go unnoticed that deceased in answer to question No.10 has stated that husband and mother-in-law of the victim namely appellant herein had poured kerosene and ignited her resulting in burn injuries sustained by deceased. However, photographs and spot panchanama - Ex.P3 and P4 would disclose that the scene of the offence is an open field area which is about 40 feet away from the house of the accused and the said field is said to be belonging to the relative of the accused and he has not been examined. On the other hand, it is the specific case of the prosecution that the incident took place inside the house and even as per the dying declaration - Ex.P-27. Thus, material inconsistencies in the evidence of prosecution witnesses has not been explained by the prosecution. : 26 :
22. Now turning our attention to the second dying declaration Ex.P-20 said to have been recorded by P.S.I - P.W.19 on 28.06.2013 at 11:30 a.m. is to be summarily rejected or ought not to have been accepted by the learned Sessions Judge, for reasons more than one. Firstly, P.W.12, who is alleged to be the scribe of Ex.P-20 has denied the case of prosecution and he is none other than the cousin brother of P.W.10 (father of deceased) and he has not supported the case of prosecution. Secondly, P.W.19, who claims to have recorded Ex.P-20 at 11:30 a.m. has admitted in his cross-examination that at 10:00 a.m. he gave requisition to the Taluka Executive Magistrate to record the statement of deceased Roopa. However, said document initially did not see the light of the day and same was never produced by the prosecution before the learned Sessions Judge. Ex.P-30 which has been relied upon by the prosecution relates to the requisition sent by the I.O. to the CMO, Kumareshwara Hospital who was on duty on 28.06.2013. This document, Ex.P-30 was sought to be produced by way of secondary evidence. In order to drive : 27 : home the point that maker of dying declaration was in a fit mental condition to make such statement. However, as already discussed hereinabove, said certification pales into insignificance in the light of his statement in the cross- examination which is to the effect that he had not physically examined the deceased. But on the other hand, he had recorded the information from the nurse over phone about the mental condition of deceased and as such, he had endorsed in Ex.P-30, as per Ex.P-30(c), which would clearly indicate that it is the hearsay evidence. In fact, he goes to the extent of deposing that had endorsed on Ex.P-30, as per Ex.P-30(c), even without ascertaining the mental condition of deceased by himself. In fact, he had not even examined deceased before certifying about mental capability of deceased to make a statement. Normally in the case of burn injuries, that too to the extent of 90 to 95%, injured patient would be under lot of pain. As such, to ensure that there is reduction of pain, attending Doctors would administer pain killers and in many a circumstances, it would be followed by intra : 28 : muscular sedative injections administered to the patients resulting in they being unconscious. In this background, hospital records have been perused by us which came to be produced as it would throw light on this issue. On examination of said records i.e., Ex.P-29, it is found that deceased was put on oxygen mask and she had burns all over the face, chest, backside and limbs. Ex.P-29 case- sheet would also disclose that deceased was injected with sedatives and this fact is also admitted by Doctor P.W.21 in his cross-examination dated 31.01.2015 and the resultant position by such administration of the injection, patient would be in drowsiness. In the instant case, deceased was not only in drowsiness, but also with oxygen mask on. In fact, parents of deceased who have been examined as P.W.10 and P.W.15 respectively have admitted in their cross-examination that deceased was not in a position to talk. This material evidence though available on record has been completely ignored by the learned Sessions Judge, as a result of which conviction has been based on Exs.P-20 and P-27. In the dying declaration, thumb mark : 29 : of deceased is said to have been obtained. Photographs produced as per Exs.P-5 and P-6 would disclose that both the hands of deceased are completely burnt and in fact, right hand of deceased is completely bandaged. As such, the inconsistencies in prosecution being large, suspicion surrounding the execution of dying declaration not cleared by prosecution or in other words, in the teeth of glaring discrepancies in Exs.P-20 and P-27, learned Sessions Judge was not justified in convicting accused for aforesaid offences.
23. It has been alleged by the prosecution that deceased was poured with kerosene by accused persons and as a result of fire being caught to her saree, she ran as a result, her petticoat was burnt and the pieces of it was found about 40 metres away from the residence or found in the open field. If it were to be so, minimum that was expected of the prosecution was to obtain the ashes of burnt cloth found at the spot, including the pieces of cloth which was said to be strewn around for being sent to FSL examination and to secure report in that regard. This has : 30 : also not been done in the instant case. Medical records i.e., Ex.P-29 it is recorded as "self induced burns" and entry made by the doctor to the effect "no history of loss of consciousness" which indicates that deceased herself having stated before the doctor at the time of her admission that burn injuries sustained by her was self induced.
24. That apart, alleged kerosene which is said to have been used or left over kerosene if any including the kerosene container as well as match box which is said to have been used for lighting the deceased has not been seized. No reasons are forthcoming from the prosecution as to why said exercise was not undertaken. In the light of these suspicious circumstances surrounding the case of prosecution, it cannot be gain said by them that guilt of accused has been proved beyond reasonable doubt to convict the appellants.
25. The contents of Ex.P-27 when read along with other available evidence on record, it would not inspire : 31 : confidence in us to accept the same as to having been made by person who had suffered 95% burn injuries or in other words, said contents of dying declaration appears to be unnatural and not made in the normal course.
26. P.W.22 I.O. has deposed that incident in question had occurred in the open space namely in the fields belonging to one Shri Holebasayya Galagalimath, whereas in Ex.P-27, dying declaration it is alleged that burning took place inside the house of her husband. This inconsistency has also not been explained by the prosecution through the witnesses it examined and contradictions in the case of prosecution are sufficient enough to arrive at a conclusion, that finding recorded by learned Sessions Judge based on ExS.P-20 and P-27 cannot be sustained. In the background of above inconsistencies and the statements made by accused persons recorded under Section 313 of Cr.P.C. to the effect that deceased was undertaking the job or task of boiling the water outside the house and on account of accidental fire injuries having been sustained by deceased cannot be : 32 : ruled out. In reply to question No.27 as to whether the accused persons have anything to say namely accused No.1, he has stated to the following effect:
"£À£Àß vÀAzÉ vÁ¬Ä Hj£À°ègÀĪÀ ªÀÄ£ÉAiÀÄ°è ªÁ¹¸ÀÄwÛzÀÝgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw gÀÆ¥À vÉÆÃlzÀ ªÀÄ£ÉAiÀÄ°è ªÁ¹¸ÀÄwÛzÉݪÀÅ. ¨É½îUÉ ªÀÄ£É ºÉÆgÀUÉ EgÀĪÀ ºÉƯÉUÉ £À£Àß ºÉAqÀw ¸ÁߣÀ ªÀiÁqÀªÀ ¸À®ÄªÁV ¤ÃgÀÄ PÁ¬Ä¸À®Ä ºÉÆÃzÁUÀ, ºÉƯÉUÉ ºÀwÛ¹zÀ ¨ÉAQ UÁ½¬ÄAzÀ CªÀ¼À ¹ÃgÉUÉ vÀUÀÄ°, CªÀ½UÉ ¨ÉAQ ºÀwÛPÉÆAqÀÄ fÃgÀÄPÉÆAqÀÄ ªÀÄ£É ªÀÄUÀΰUÉ §AzÀ¼ÀÄ, DUÀ £Á£ÀÄ ªÀÄ£ÉAiÀÄ M¼ÀV¤AzÀ §AzÀÄ £ÉÆÃqÀĪÀµÀÖgÀ°è ªÀÄ£ÉAiÀÄ ªÀÄUÀή°è ©¢ÝzÀݼÀÄ, ªÀiÁvÀ£ÁqÀĪÀ ¹ÛwAiÀÄ°è EgÀ°®è. Hj£ÀªÀjUÉ ¥ÉÆÃ£ï ªÀiÁr PÀgɹPÉÆAqÀÄ, 108 CA§Ä¯É£ïì£À°è £À£Àß ºÉAqÀwAiÀÄ£ÀÄß D¸ÀàvÉæUÉ ¸ÉÃj¸À¯Á¬ÄvÀÄ."
27. In the light of aforestated discussion, the judgment and order of conviction and sentence imposed on appellants cannot be sustained.
Hence, for the reasons aforestated, we proceed to pass the following:
ORDER
(i) Criminal Appeal No.100154/2016 is hereby allowed.: 33 :
(ii) The judgment and order of conviction and sentence passed by the Principal District and Sessions Judge, Bagalkot dated 12.05.2016 in S.C. No.78/2013 by convicting the accused for offences punishable under Sections 498-A, 304-B and 302 read with Section 34 of IPC and Section 4 of Dowry Prohibition Act is hereby set aside and accused are acquitted of said offences.
(iii) Accused are ordered to be released forthwith, if not required in any other case on execution of a bond as required under Section 437A of Cr.P.C. to the satisfaction of jurisdictional Sessions Court.
(iv) Amount of fine, if any, paid or deposited is ordered to be refunded to appellants on expiry of appeal period.
(v) Registry is also directed to send the original records to the jurisdictional Sessions Court along with operative portion forthwith.: 34 :
Registry is directed to furnish the operative portion of the judgment to the learned counsel appearing for appellants, learned Additional SPP and to forward the same to the Superintendent of Jail, Vijayapura and the jurisdictional Sessions Court forthwith.
(Sd/-) JUDGE (Sd/-) JUDGE Vnp* (paras 1 to 4) Mns (paras 5 to 21 ) Rsh (paras 22 to end)