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NC: 2024:KHC:40183-DB 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

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 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 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.

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.