1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF MAY 2018 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR.JUSTICE BUDIHAL R.B. CRIMINAL APPEAL NO.360/2014 BETWEEN: [ENTITY] S/o late Siddapagowda, Age 50 years, Muluvalli, Aralikoppa Village, N.R.Pura Taluk, Chikamaglur District - 577134. Appellant (By Sri.[ENTITY], Advocate) AND: The [ENTITY] by N.R.Pura Police Station, Chikamaglur - 577 134. Respondent (By Sri.[ENTITY], HCGP) 2 This Criminal Appeal is filed under [SECTION] of [ACT], praying to set aside the order dated 08.12.2009 passed by the Additional District and Sessions Judge, Chikmagalur in [CASE NUMBER] convicting the appellant/ accused for the offence punishable under [SECTION] and [SECTION] of [ACT] and etc. This appeal coming on for hearing this day, [ENTITY], delivered the following:- JUDGMENT
This appeal is preferred by the appellant/ accused being aggrieved by the judgment and order of conviction and sentence dated 08.12.2009 passed by the Additional Sessions Judge at Chikmagalur in [CASE NUMBER] wherein the appellant/accused has been convicted for offences punishable under [SECTION] and [SECTION] of [ACT].
2. Brief facts of the prosecution case are that as per Ex.P9 the statement of deceased [ENTITY], which was given on 18.03.2008, wherein she has stated that she was residing with her husband and children in the address mentioned in complaint. She was having two male children, aged 7 years and 5 years and both the children were left in the house of her elder sister for the purpose of their study. She and her husband were staying at Muluvalli. From the date of her marriage, her husband was suspecting her fidelity alleging that she is having illicit connection with some one. He used to come to house daily consuming alcohol and was giving ill-treatment both mental and physical making galata and was assaulting her. In this connection, number of panchayats were held in the village. Even then her husband did not heed to the advice of panchayats. On 17.03.2008 at 8.30 P.M., her husband came to the house in a drunken state and made galata with her stating that, either she has to die or he has to die, one has to take place. Stating so, he took the can containing kerosene oil poured the same on her body and lit fire to her. Thereafter, he ran away from the said place. Because of the burns she started to scream and at that time neighbours namely [ENTITY], [ENTITY], elder sister [ENTITY] and brother-in-law [ENTITY] came to the house and she was admitted to N.R.Pura Government Hospital. Because of her husband pouring kerosene oil and lit fire to her she sustained burns on the face, neck, chest, back, both upper limbs and thigh portion and that legal action may be taken against her husband who made attempt to lit her by pouring kerosene and set her ablaze. On the basis of the said statement of [ENTITY], case came to be registered in N.R.Pura Police Station Crime No.25/2008 for the offences punishable under [SECTION] and [SECTION] of [ACT].
3. After the demise of the said [ENTITY] and as per the requisition by police an offence under [SECTION] of [ACT] in place of [SECTION] of [ACT] was inserted in the case.
4. After conducting investigation, Investigating Officer filed charge sheet against accused person for the offences punishable under [SECTION] and [SECTION] of [ACT]. The learned Sessions Judge framed charges against the appellant/accused. When the charge was read over to the accused, he denied the charges and claimed to be tried in the case. Accordingly, the case was set down for trial.
5. The Prosecution in all got examined 19 witnesses and produced 19 documents marked as Exs.P1 to P19 and also got marked six material objects MOs1 to 6.
6. Accused has been examined under [SECTION] of [ACT] and his statement has been recorded. On the side of the defence no witnesses have been examined nor any documents were produced.
7. After hearing the arguments of both sides and considering the materials placed on record, both oral and documentary evidence, ultimately the learned Sessions Judge came to the conclusion holding that prosecution proved its case beyond all reasonable doubt for both the charges and has convicted the appellant/accused for both the offences and he was sentenced.
8. Being aggrieved by the judgment and order of conviction, so also the sentence imposed and also challenging the legality and correctness of the judgment and order of conviction on the grounds as mentioned in ground Nos.1 to 21 of the appeal memo, the appellant/accused is before this Court.
9. We have heard the arguments of learned counsel appearing for the appellant/accused and learned HCGP for the respondent-State.
10. The learned counsel for the appellant/ accused submitted that in this case, the materials go to show that after the burns, the deceased was not in a position to speak. In this connection the learned counsel drew our attention to the deposition of the witnesses through the paper book and submitted that relatives and sisters of the deceased have deposed that she was not in a position to speak. Hence, he submitted that when she was not able to speak the question of deceased giving the statement as per Ex.P9 before the Head Constable does not arise at all. He drew our attention to the document Ex.P9 and submitted that there is no certification by the doctor that the deceased-[ENTITY] was in a conscious state and was fit to give her statement and in the absence of such certification by the doctor it cannot be believed that she was able to speak and give statement before the Head Constable as per Ex.P9. The learned counsel also submitted that so far as Ex.P12, another dying declaration is concerned, it is the submission that when she was really in a position to speak why there was a delay of three days in recording dying declaration under Ex.P12. It is his submission that when ultimately her own sister's evidence is on record that she is not capable to speak it raises reasonable doubt in the mind of the court about the case of the prosecution that she gave such a statement under Ex.P9 before the Head Constable and Ex.P12 before the doctor, in the presence of PW13- Head Constable. He also made the submission that entire case sheet of N.R.Pura Hospital is also not produced before the trial court. He drew our attention to the document at page No.103 of the original file Ex.P14 which is the case sheet and submitted that there is a mention in the said document that 'burn injury is by self'. Referring to this document, the learned counsel also made submission that this document itself clearly goes to show that it is a case of suicide and not the case of murder as alleged by the prosecution.
11. The learned counsel submitted that the appellant/accused is totally unconnected with the alleged incident but for any reason if the court comes to the conclusion that there is material, alternately the learned counsel also submitted that looking to the case sheet at page No.103 in the original records of trial court, at the most, the case may fall under [SECTION] of [ACT] abetment to commit suicide and it will not come under [SECTION] of [ACT]. The learned counsel also submitted that dying declarations were not satisfactorily established by the prosecution. Therefore, the learned Sessions Judge wrongly relied upon the said documents and held that they were proved by the prosecution to the satisfaction of the Court. The learned counsel submitted that so far as N.R.Pura Hospital records are concerned the entire case sheet is not before this Court. If the case sheet had been produced before the Court it could have thrown light about all the details of the incident. Hence, it is his contention that itself raises a reasonable doubt as to the case of the prosecution whether really it is the accused person who poured kerosene and lit fire to [ENTITY]. The learned counsel submitted that this aspect is also over looked by the learned Sessions Judge in coming to conclusion that the appellant/accused is convicted for both the charges and that the entire approach of the learned Sessions Judge is not in accordance with law and also is not in accordance with materials placed on record. He submitted that the prosecution utterly failed to prove its case beyond all reasonable doubt. Perusing the materials, the reasonable doubt arises as to the case of the prosecution and benefit of such doubt may be given to the accused by allowing the appeal and setting aside the judgment and order of conviction passed by the trial court.
12. The learned counsel also submitted that in the alternative atleast the judgment is to be modified and the appellant/accused at the most may be convicted under [SECTION] of [ACT].
13. Per contra, learned HCGP submitted that the evidence of Head Constable and doctor-PW15 clearly goes to show that she was in a conscious state and she was capable to speak and she really gave the statements as per Ex.P9 and Ex.P12.
14. The learned HCGP further submitted that even if there is no certification of Ex.P9 it is not fatal to the prosecution case. He submitted that when the oral and documentary evidence of PW9 and PW13 is worth believable about the mental capacity of [ENTITY], in that case only on the ground that there is no certification by the doctor on Ex.P9, the entire case of the prosecution cannot be rejected. He also drew our attention to the evidence of prosecution witnesses and submitted that during the cross- examination of PW15-doctor, the defence has not at all challenged and not put any question regarding the case sheet and without raising such grounds in the cross- examination when such opportunity was there to the defence, it cannot be contended that because there is no certification by the doctor, the document itself is not suspicious in nature. He submitted that the prosecution placed the satisfactory material both oral and documentary and even the extract of MLC register of N.R.Pura Hospital has been produced and he drew our attention to Ex.P8 and Ex.P13 and submitted that in these two documents there is no mention that she herself poured kerosene and lit fire and thereby committed suicide. Hence, learned HCGP submitted that in the absence of such material brought on record by the defence, by way of cross-examination, the case of the prosecution cannot be suspected. He also drew our attention to the judgment of the learned Sessions Judge and submitted that all these aspects were considered by the learned Sessions Judge and rightly held that dying declarations were satisfactorily proved by the prosecution and they can be relied upon by the court. It is also submitted by the learned HCGP that the medical evidence in the case is in corroboration to two dying declarations- Ex.P9 and Ex.P12 and hence, lastly submitted that there is no merit in the appeal and no illegality is committed by the learned Sessions Judge. Hence, submitted to dismiss the appeal.
15. We have perused the grounds urged in the appeal memo, judgment and order of conviction and sentence passed by the court below, oral evidence of prosecution, documents produced in the case and we have also considered the submission made by the learned counsel of both sides.
16. The prosecution case is that the case was initiated at the first instance on the statement of [ENTITY]. The said statement is marked during the course of the trial as per Ex.P9. We have perused the contents of the said document at Ex.P9. Looking to the contents in the beginning of the judgment we have detail reference to its contents wherein the allegations made by the deceased against her husband that from the date of her marriage he was suspecting her fidelity alleging that she is having illicit connection with other persons and for that reason he used to come to house in a drunken state. Everyday he was assaulting her and on the date of the said incident he came to the house in a drunken state picked up quarrel with his wife and told that either she has to die or he has to die. Stating so, he took the kerosene oil poured on her, lit fire and ran away from the house. Perusing the contents of the dying declaration-Ex.P9, there are allegations against the husband and after the demise of [ENTITY] in the hospital because of the burn injuries, the document Ex.P9 the dying declaration, becomes a relevant piece of evidence under [SECTION] of [ACT]. The dying declarations which she has given before the Head Constable-PW9 and PW13, the prosecution has relied upon these two dying declarations in support of its case.
17. The main objection of the learned counsel for the appellant/accused in so far as the dying declaration- Ex.P9 is concerned, there is no certification by the doctor that the person giving the statement was conscious and she was in a fit state of mind to give the said statement. Therefore, it is his contention in the absence of such certification by the doctor, it is not safe for the court to rely upon such statement for convicting the accused. In this connection, we are referring to the decision of the Hon'ble Apex Court in the case of [PRECEDENT] which is a five judge bench decision wherein their Lordships have ruled that certification by doctor is not mandate of law, it is only rule of caution for the Court. Therefore, in view of the said principle of Hon'ble Apex Court we are of the opinion that only on the ground there is no certification by the doctor at Ex.P9, it cannot be rejected out right. What is to be appreciated by the court in respect of a dying declaration is whether the evidence of prosecution witness in whose presence such statement was made, is worth believable or not. Therefore, the evidence of the witness regarding dying declaration is to be appreciated by the court cautiously. We are conscious of the fact that a person who makes a statement or declaration is not making the same on oath, the declarant is also not subjected to the cross examination of the said statement. Even we are conscious of the fact of the legal position that if the dying declaration is satisfactorily established that itself can be a sole basis for conviction without seeking its corroboration with any other material. Now coming to oral evidence of the prosecution witness regarding the dying declaration is concerned PW9-Head Constable in his examination-in-chief he deposed that on 17.03.2008 at 12.00 midnight when he was Station House Officer of the N.R.Pura, he received the intimation from the Government Hospital as per Ex.P8. At 12.10 A.M. in the midnight, he went to the hospital and enquired that [ENTITY] was the person who sustained burn injuries and after enquiring her, he recorded her statement and also obtained her signature as per Ex.P9(a) and said statement is identified as Ex.P9. Then he came to the Police Station and on the basis of same registered Crime No.25/2008 and issued FIR as per Ex.P10. He also identified his signature at Ex.P9(b) and his signature on the FIR as per Ex.P10(a). On 19.03.2008 he deputed the police personnel in search of the accused and on the same day morning at 9.00 A.M. accused was traced at Hogadekal Bus Stand and the accused was brought and produced at 10.00 A.M along with the report as per Ex.P11. He further deposed that while recording the statement under Ex.P9 she stated that on 17.03.2008 at 8.30 P.M her husband came to the house in a drunken state and he was stating that either she has to die or he has to die, one should take place and stating so, he poured kerosene on her body, lit fire and ran away from the house. He also deposed that she also told before him that the accused was suspecting her fidelity and everyday he came to the house in a drunken state and was giving both physical and mental cruelty. In the cross- examination, he deposed that he has not obtained the opinion of the doctor before recording her statement to know whether she is in a position to give her statement or not. Before recording her statement separately, he has not taken in writing the permission of the doctor. When it was suggested that when he went to the hospital her condition was serious but the witness deposed that she was alright. He deposed that under Ex.P8 while writing firstly it was mentioned as 11.00 A.M. and thereafter it is corrected as 12.00 A.M. There is the distance of one furlong from the police station to the hospital and from the police station to the residence of the judicial officer there is a distance of two furlong. As it was night, the FIR was sent on the next day morning to the judicial officer. He denied the suggestion that the FIR was registered at 7.30 A.M. on 18.03.2008. He himself gave the pen to the injured to put her signature. He denied the contention that her signature looks like overwritten. He denied the suggestion that the pen used for writing the contents of Ex.P9 and the pen used for her signature are different. He deposed that he recorded the statement as narrated by the injured. He denied the suggestion that she has not given any statement before him and he himself has prepared such statement. When the statement was being recorded at that time, either the nurse or the compounder was not giving the treatment to her. Her relatives came to the hospital but they were not willing to lodge the complaint. He denied the suggestion that the injured has not made any such statement before him and he has not taken the accused into custody and not produced him before PSI.
18. So far as another dying declaration Ex.P.12 is concerned the prosecution also examined PW10- Dr.[ENTITY] who deposed in his evidence that Mcgan Hospital, Shimoga is attached to SIMS Shimoga. He has been working as Medical Officer in Mcgan Hospital since two years. On 20.03.2008 at about 3.00 P.M. when he was Casualty Medical Officer, one Head Constable of N.R.Pura Police came and told that he has to take statement of injured [ENTITY] admitted in the Burns Ward. Then he examined and found that she is physically and mentally fit to give statement. The police Head Constable recorded her statement in his presence. She was unable to hold the pen and her thumb impression was taken to the statement after reading it over to her. He endorsed the statement that the patient was fit to give statement and affixed his signature with seal. He has seen the statement marked at Ex.P12 and his endorsement is at Ex.P12(a). The L.T.M of the patient is at Ex.P12(b). There is one more L.T.M below Ex.P12(b). Since the first impression was not clear as she had applied ointment to the left thumb, the second impression was taken. In the cross-examination, he deposed and admitted as true that he has not specifically written in Ex.P12 that it was recorded in his presence. The distance between Burns ward and casualty is about 100 meters. He has not treated the patient [ENTITY]. He does not know who was Incharge of the Burns ward. There is no separate seal to the Casualty Medical Officer. It may be true that as per rules there should be separate seal to the Casualty Medical Officer. The Head Constable has not given any requisition to him. He has not verified the case sheet of the patient and not verified who has treated her. There were 7 to 8 other patients in the Burns ward. He has not maintained any records for having questioned the patient. The Head Constable recorded the statement as narrated by her. The statement was recorded between 3.00 P.M. to 3.30 P.M. The witness denied the suggestion that PW12 has not recorded in his presence and that when he was else where in the hospital the police took his signature. He denied the suggestion that the patient was not physically and mentally fit for giving any statement.
19. Another doctor has been examined as PW11- Dr.[ENTITY] who deposed in his evidence that he has been working as Junior Assistant/ Casualty Medical Officer, SIMS Mcgan Hospital, Shimoga since two years. He brought the accident case register. On perusal of the same, he deposed that on 18.03.2008 at 10.45 A.M. patient by name [ENTITY] was referred from P.H.C, N.R.Pura and she was admitted to the hospital with history of burns. She was conscious at the time of admission and was shifted to the Burns ward. He also brought the case sheet. As per the case sheet the patient was admitted by Dr.[ENTITY], CMO and further treated by Dr.[ENTITY], Surgeon. He further deposed that on 24.03.2008, the Casualty Medical Officer attended the patient at 8.05 A.M. as per the emergency call from Burns ward and found her condition very serious. She died at 8.40 A.M. He sent the police intimation as per Ex.P13 and case sheet is produced at Ex.P14 consisting of nine sheets. The last sheet consists his endorsement and signatures at Ex.P14(a) and Ex.P14(b). In the cross-examination, he deposed that there is no mention in the M.L.C register as to how the burns happened because it was a referred case. Even in the reference slip there is no mention as to how the burns has happened. In M.L.C her general condition is written as not satisfactory. It is written that she was conscious but it is not specifically written that she was fit to speak. The case sheet reveals that day by day her condition went on deteriorating.
20. PW12-Dr.[ENTITY] of the same hospital at Shimoga deposed in his evidence that on 24.03.2008 in between 3.20 P.M. to 4.20 P.M. as per the request of N.R.Pura Police, the doctor conducted the postmortem of the dead body of female by name Smt.[ENTITY]. Burns were present over face, chest, abdomen both upper limbs, back and partly over lower limps as shown in the diagram of the last page of postmortem report. The percentage of the burns were 58% to 63%. All the internal organs were intact and congested as noted in the postmortem report. He was of the opinion that the death was due to shock as a result of burns sustained. The above injuries are possible by pouring kerosene and setting fire and those injuries are sufficient to cause death. The age of the injuries corresponds to the alleged history time. In the cross- examination, he deposed that the upper limbs including the fingers were fully burnt. He admitted as true that the blood circulation on face will be more compared to other parts. The question was put wherein it was suggested that the burns could also been caused while cooking. The witness answered no, it is not possible. He further deposed that he has shown the burns in the diagram but he has not mentioned it in words. He has not brought the postmortem register as he was not called for bringing it. He denied the suggestion that he has not conducted the postmortem and issued the postmortem report only to oblige the police. He denied the suggestion that the postmortem report procedure is not in accordance with rules.
21. So far as Ex.P12 is concerned the prosecution has also examined PW13- Head Constable who recorded the statement at Ex.P12 wherein he has also deposed that on 20.03.2008 the PSI of N.R.Pura Police has shifted [ENTITY] to Mcgan Hospital, Shimoga for proper treatment and he was directed to record her further statement. Accordingly, at 3.00 P.M. he went to the said hospital. He saw the injured and talked to her. Then he met Dr.[ENTITY] and informed that he want to take further statement and also requested to be present at that time. the said doctor came to the ward where the injured was taking the treatment. The doctor asked the injured that the police have come to record the further statement and whether she is willing to give further statement, the injured submitted that she will give the further statement. Then he enquired with her and recorded her statement which is at Ex.P12. When the contents were read over to her, she admitted the contents as true and put her left thumb impression as per Ex.P12(b). As there was ointment to her thumb, thumb impression was not clearly impressed, then he has obtained one more thumb impression and doctor also put his signature as per Ex.P12(a). He also put his signature as per Ex.P12(c). What has been stated by the injured is clearly deposed in para 3 in his deposition in the examination-in-chief. In the cross-examination, he deposed that he has not given in writing to the doctor about his request. When he went there the treating doctor was not present but duty doctor was present. He has not mentioned what all question have been put to the injured. What ever she has stated he recorded from 3.00 P.M. to 3.30 P.M. He denied the suggestion that he has not recorded the statement nor he has not gone to the hospital nor injured has given such statement before him. He denied the thumb impression at Ex.P12 is not the thumb impression of the injured.
22. PW15-Dr.[ENTITY] is another doctor examined wherein he has stated that on 17.03.2008 at about 10.00 P.M. the patient by name [ENTITY], 36 years was brought to the hospital by one [ENTITY], [ENTITY] and [ENTITY] with history of burns. He examined her and admitted in Emergency Ward and noted the injuries at Sl.nos.1 to 6 as mentioned in his deposition. The percentage of burns over the skin was about 66 to 70 percent. He also deposed that the patient was conscious well oriented and she was capable of talking freely. Next day morning she was referred to Higher Centre, Mcgan Hospital. He also issued the accident register extract to the Investigation Officer. The xerox copy which is marked as Ex.P17. The said injuries could have caused by pouring kerosene and setting fire. Ex.P8-M.L.C sent to the local police, bears his signature at Ex.P8(a). In the cross- examination he deposed that major burns were caused on her front portion. The burn injuries could have also happened if the fire catches from the front side while cooking bending forward. But in a such situation burns cannot be caused on the head. He further deposed that if kerosene is poured on the head, the kerosene may or may not spread over all parts of the body, it depends on various factors. If any person pours kerosene on another person the person who pours kerosene is also likely to come in contact with kerosene to his particular hand. In such a situation, the person who pours kerosene need not necessarily catch fire in case he strikes a match box. So also the person who attempts to extinguish the fire need not necessarily suffer burn injuries. He denied the suggestion that she was not in a fit condition to speak. Therefore, so far as document Ex.P9 and Ex.P12 dying declarations are concerned and looking to the oral evidence of the doctor so also the Head Constable, there is consistency in the case of the prosecution. Their evidence more particularly the doctor's evidence clearly goes to show that she was in a fit condition to give the statement. She was also conscious. Therefore, when such material is placed by the prosecution, the contention of the learned counsel for the appellant/accused that the sisters of the injured herself stated that she is not in a position to speak cannot be accepted. During the cross-examination of the doctor and police officers nothing has been elicited from their mouth as to what ensued between them and the accused person in creating false documents as alleged. In the absence of such material and when the oral and documentary evidence which is consistent and worth believable and so also the mental condition of the deceased is specifically spoken by the doctor, there is no reason for the court to suspect the case of the prosecution regarding her mental condition.
23. Regarding legal position, we have already referred to the Constitutional Bench judgment of the Hon'ble Apex Court referred above, the Court has to see whether the person in whose presence the declarant gave statement is worth believable or not. Therefore, applying this principle to the oral evidence of the prosecution witness, we do not find any infirmity so as to disbelieve about the conscious state and also mental condition of the deceased who gave statements before the police under Ex.P9 and Ex.P12. The judgment of the trial court in this regard when appreciated, the learned Sessions Judge has considered each and every aspect of the matter and has held that dying declarations as per Ex.P9 and Ex.P12 are consistent, there is no reason for this court to interfere so far as the proof of the dying declarations Ex.P9 and Ex.P12 are concerned. Regarding the contention of the learned counsel for appellant/accused that the document under Ex.P14-case sheet at page No.103 wherein it is mentioned as 'burn by self' therefore, it is his contention that it is suicide and not murder as alleged by the prosecution. We carefully examined the said document where 'self' is scored out and again there is a mention about that as 'self' and there are some overwriting made in the said document. We have also perused the documents Ex.P14-case sheet and Ex.P17- MLC register extract. Perusing both these documents Ex.P14 and Ex.P17 so also Ex.P8 there is no mention that the injured gave statement that she herself poured the kerosene by self and set fire to herself. In the absence of such material only on the basis of some writing has been made at page No.103 in Ex.P14-case sheet the contention of the learned counsel for the appellant/accused cannot be accepted and even there is no material by way of defence that the case falls under [SECTION] of [ACT] and not under [SECTION] of [ACT].
24. As per the document Ex.P9-dying declaration the statement of the deceased that she is having two male children but for the purpose of their education the children were staying with her elder sister and she and her husband were staying in the house. Therefore it has come on record that in the residential house it is only the accused and decease who were staying which fact is not disputed by the accused. It is also not his contention by way of cross- examination that apart from them there is any other family member staying in the said house. When that is so, the burden is on the accused person to explain to the court what are the circumstances which led to the said incident. In this regard [SECTION] of [ACT] is relevant. We are also referring to the decision of the Hon'ble Apex Court in the case of [PRECEDENT] para 20 and 21 are the relevant portion which reads as under:
20. In [PRECEDENT], the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though [SECTION] of the [ACT] may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.
21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind.
The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See [PRECEDENT] (para 6); [PRECEDENT] (para 39): [PRECEDENT] (para 40); [PRECEDENT] (para 27); [PRECEDENT] (para 15) and [PRECEDENT] (para 4).
Therefore, even looking to the principle of the said decision, the burden is on the accused person to explain the circumstances under which circumstances death has taken place. In this regard we have also perused [SECTION] of [ACT] statement of the accused person wherein he is having opportunity to explain about the incident. Looking to [SECTION] of [ACT] statement under Question No.20 has put to the accused that whether he want to say anything more? He said 'No'. Another Question No.21 whether he want to examine anybody on his behalf? He said 'No'. Therefore, even such opportunity was there to the accused person for explaining regarding the incident which took place inside the residential house, even then, he has not make use of the said opportunity.
25. Apart from that according to the accused person if he is not suspecting fidelity of the deceased he was not picking up quarrel with her and was treating her with love and affection, then immediately after the incident which is accidental in nature according to him he ought to have accompanied the deceased to the hospital but in this case he has not at all accompanied the injured and he remained absconding. The incident was on 17.03.2008 and he was apprehended on 19.03.2008, for two days he not at all cared for the deceased nor he came to the hospital to see his wife. So conduct of the accused person is inconsistent with the case of the defence of the accused person. He was having guilty conscience about the involvement in the commission of the offence and that is why he remained absconding. Therefore, looking from any angle, the prosecution has established its case regarding dying declaration Ex.P9 and Ex.P12 which is worth believable. Therefore, we do not find any illegality in the judgment of the learned Sessions Judge nor it is perverse nor a capracious view is taken in coming to the said conclusion. Therefore, no valid and justifiable grounds are made out by the accused to interfere with the impugned order passed by the learned Sessions Judge. Hence, there is no merit in the appeal.
Appeal is hereby dismissed.
JUDGE Sd/-
JUDGE UN