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6. We have heard the learned Counsel for the parties.

7. Sri Shankarappa, learned Counsel for the appellant contended with vehemence that the impugned judgment and order of sentence, convicting the accused for the aforesaid offences and sentencing him to undergo imprisonment for life is erroneous and contrary to the material on record and cannot be sustained. He further contended that the prosecution witnesses - P.Ws.5 to 8, 12 to 15 and 17 have turned hostile and have not supported the case of the prosecution, but very strangely, the learned Sessions Judge has convicted the appellant only on the basis of the second dying declaration recorded by the Taluk Executive Magistrate as per Ex.P.5 ignoring the first dying declaration - Ex.P.16 made by the deceased on 16.9.2013 in presence of the Head Constable, her own brother-P.W.17, and the doctor - P.W.10. Therefore, the learned Sessions Judge has committed a grave error in convicting the accused and hence, the impugned judgment is liable to be set aside.

8. The learned Counsel for the appellant would further contend that there are lot of contradictions, omissions and improvements in the evidence adduced by the prosecution and the learned Sessions Judge convicted the accused mainly on the basis of the second dying declaration, the evidence of the Tahisldar - P.W.4 and the investigating officer, cannot be sustained. He would further contend that when there are two versions in the dying declarations i.e., one in the complaint made by the Tahsildar and the first dying declaration - Ex.P.16, and another in the second declaration - Ex.P.5, the learned Sessions Judge ought to have considered the version which is in favour of the accused instead has proceeded to convict the accused, which is erroneous.

18. Though the dying declaration - Ex.P.16 made by the deceased was recorded by P.W.20 - the Head Constable when she was in a fit statement of mind as opined by the doctor - P.W.10 and the same was received by the PSI on the very same day, the jurisdictional police have not registered the complaint. Very strangely on 17.9.2013 at about 9.40 p.m. on the request made by the police, the Taluka Executive Magistrate - P.W.4 has recorded the second dying declaration, which is nothing but a format stating that her statement was recorded on 17.9.2013 when the patient was conscious and self oriented to give statement. The background of assault was misunderstanding between the husband and wife and her statement was on par with the complaint made, that her husband had poured kerosene on 15.9.2013. Though the second dying declaration is made on 17.9.2013 on 9.00 p.m. to the jurisdictional police and P.W.4 has sent the same along with the complaint - Ex.P.6, the jurisdictional police have registered the complaint on 19.9.2013 at about 2.00 p.m. If we take the first dying declaration dated 16.9.2013, there was a delay of four days in registering the case and if we take the second dying declaration which was recorded on 17.9.2013 which was received by the jurisdictional police on 19.9.2013, that too after two days, on the basis of which a criminal case was registered against the accused, absolutely there is neither any material nor explanation by the prosecution for the delay of two days in registering a case against the accused. Even in the impugned judgment, no reason is forthcoming as to why Ex.P.16 the first dying declaration is ignored. The learned Sessions while proceeding to convict the accused has failed to take into consideration the dictum of the Hon'ble Supreme Court that when two views are possible based on the dying declarations dated 15.9.2013 and 17.9.2013 on which basis a case is registered, the golden thread which runs in favour of the accused has to be taken into consideration. Unfortunately, inspite of all the prosecution witnesses including the parents, sister, brother, children, alleged eye witnesses, panch witnesses to the spot mahazars, neighbours and even the owner of the house where the deceased and accused were residing turning hostile, the learned Sessions proceeding to convict the accused without there being any material evidence, is erroneous and cannot be sustained.

20. On careful perusal of the entire material on record, it is clear that ignoring the first dying declaration made before P.W20 - Head Constable, P.W.10 - Doctor who had certified that the deceased was in a fit state of mind and P.W.17 - the brother of deceased, the learned Sessions Judge has proceeded to convict the accused. Though the learned HCGP submits that the more weight has to be given to the second dying declaration made by the deceased when she was in a fit state of mind that too in presence of the Taluka Executive Magistrate, on which basis a complaint was lodged, cannot be accepted in view of the fact that, after recording the second dying declaration, the Taluka Executive Magistrate has not shown his due diligence to send the same within time to the jurisdictional police and conveniently, after two days, has sent the same which clearly depicts that, he has not discharged the duty of the Magistrate and hence, recording of the second dying declaration and registering a case against the accused creates doubt and it is only a deliberate and willful act of the Taluka Executive Magistrate to falsely implicate the accused.