JAYAMMA & ANR versus STATE OF KARNATAKA
[2021] 5 S.C.R. 11, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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JAYAMMA & ANR.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 758 of 2010)
MAY  07, 2021
[N.V. RAMANA, CJI, SURYA KANT AND
ANIRUDDHA BOSE, JJ.]
Penal Code, 1860: s. 302 r/w 34 – Allegation that on account
of previous dispute between the parties, accused with the intention
to kill the victim went to her house, doused her with kerosene and
set her ablaze – Acquittal by the trial court – However, the High
Court on basis of the dying declaration and corroborative statement
of the police officer who recorded the dying declaration and the
doctor who endorsed the mental fitness of the victim to make such
statement, convicted the accused u/s. 302 r/w 34 and imposed life
imprisonment – On appeal, held: Conviction of the accused cannot
be upheld only on the basis of the dying declaration – Narration of
events in the dying declaration were so accurate to be believed –
Injured victim was an illiterate old person and its beyond human
probabilities to have been able to narrate the minutes of the incident
with such accuracy – Owing to 80% burn injuries suffered by the
victim on all vital parts of the body, the possibility of her not being
in a fit state cannot be completely ruled out – Police Officer did not
ask the doctor to make an endorsement of fitness of the victim before
recording the statement – There is a serious contradiction between
the statement of the doctor and the police officer in respect of the
nature of burn injuries suffered on different body parts of the
victim
– Alleged motive for the homicidal death was doubtful – Unusual
conduct and behaviour of victim’s son and her daughter-in-law
support the parallel version that the victim might have committed
suicide – Prosecution had sufficient time to call a Judicial/Executive
Magistrate to record the dying declaration, however that was not
done – Furthermore, the High Court dealt with the appeal against
acquittal summarily and did not notice the glaring contradictions –
The so-called motive has not been proved at all and the declaration,
thus, recites a non-existent incident – Thus, the view taken by the
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trial court is fully endorsed and the order passed by the High Court
is set aside.
Evidence Act, 1872: s. 32 - Dying declaration – Evidentiary
value of – Sustenance of conviction solely based thereon – Held:
When the dying declaration has been recorded in accordance with
law, and it gives a cogent and plausible explanation of the
occurrence, it can be relied upon as the solitary piece of evidence
to convict the accused – Dying declaration is admitted in evidence
on the premise that the anticipation of brewing death breeds the
same human feelings as that of a conscientious and guiltless person
under oath – It is the last words of a person which are presumed to
be truthful, and not infected by any motive or malice – Thus, the
dying declaration is admissible in evidence on the principle of
necessity as there is very little hope of survival of the maker, and if
found reliable, it can certainly form the basis for conviction.
Code of Criminal Procedure, 1973: s. 378 – Appeal in case
of acquittal – Exercise of power by High Court u/s. 378 – Held:
Power of scrutiny exercisable by the High Court u/s. 378 should
not be routinely invoked where the view formed by the trial court
was a ‘possible view’ – Unless the High Court finds that there is
complete misreading of the material evidence which has led to
miscarriage of justice, the view taken by the trial court which can
also possibly be a correct view, need not be interfered with
– This
self-restraint doctrine, certainly, does not denude the High Court
of its powers to re-appreciate the evidence, including in an appeal
against acquittal and arrive at a different finding of fact.
Allowing the appeals, the Court
HELD : 1. When the dying declaration has been recorded
in accordance with law, and it gives a cogent and plausible
explanation of the occurrence, the Court can rely upon it as the
solitary piece of evidence to convict the accused. It is for this
reason that Section 32 of the Evidence Act, 1872 is an exception
to the general rule against the admissibility of hearsay evidence
and its Clause (1) makes the statement of the deceased admissible.
Such statement, classified as a “dying declaration” is made by a
person as to the cause of his death or as to the injuries which
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culminated to his death or the circumstances under which injuries
were inflicted. A dying declaration is thus admitted in evidence
on the premise that the anticipation of brewing death breeds the
same human feelings as that of a conscientious and guiltless
person under oath. It is a statement comprising of last words of a
person before his death which are presumed to be truthful, and
not infected by any motive or malice. The dying declaration is
therefore admissible in evidence on the principle of necessity as
there is very little hope of survival of the maker, and if found
reliable, it can certainly form the basis for conviction. [Para 15]
[29-B-E]
P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC
443 : [2003] 1 Suppl.  SCR 745; Chacko v. State of
Kerala (2003) 1 SCC 112; Sham Shankar Kankaria v.
State of Maharashtra (2006) 13 SCC 165 : [2006] 5
Suppl. SCR 709; Paniben v. State of Gujarat (1992) 2
SCC 474 : [1992] 2 SCR  197; Sampat Babso Kale
and Another v. State of Maharashtra 2019 (4) SCC
739 : [2019] 5 SCR 904  - referred to.
2. Having meditated over the issue to the extent it is
possible, and on a minute examination of the original document-
dying declaration (without understanding its contents as it is in
Kannada language except that the endorsement of the doctor is
in English) read with its true translation placed on record, it is
not found to be totally safe to convict the appellants on the basis
of the said document alongwith its
corroboration by PW-11, police
officer and PW-16, doctor for the several reasons. Firstly, the
narration of events in the dying declaration is so accurate, that
even a witness in the normal state of mind, cannot be expected
to depose with such precision. Although it is stated that deceased
was questioned by the Police officer, the purported dying
declaration is not in a questions and answers format. The direct
or indirect dominance of the Police Officer appears to have
influenced the answers only in one direction. Secondly, the injured
victim was an illiterate old person and it appears beyond human
probabilities that she would have been able to narrate the minutes
of the incident with such a high degree of accuracy. Thirdly, there
is sufficient evidence on record that the victim had been
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administered highly sedative painkillers. Owing to 80% burn
injuries suffered by the victim on all vital parts of the body, it can
be legitimately inferred that she was reeling in pain and was in
great agony and the possibility of her being in a state of delusion
and hallucination cannot be completely ruled out. The doctor (PW-
16) made the endorsement that the victim was in a fit state of
mind to make the statement ‘after’ the statement was recorded
and not ‘before’ thereto - being the normal practice. It further
appears that faculties of the injured had been drastically impaired
and instead of making statement in an informative form she had
apparently endorsed what the Police Officer (PW-11) intended
to. True it is that the Police Officer (PW-11) had no axe to grind
or a motive to implicate the appellants, but his over-enthusiasm
to solve a criminal case within no time seems to have swayed the
Police Officer (PW-11) so much that he appears to have not asked
the doctor to make an endorsement of fitness of the victim before
recording the statement. He also did not deem it appropriate to
call a Judicial or Executive Magistrate to record such statement,
for the reasons best known to himself. Fourthly, there is a serious
contradiction between the statement of PW-16 on one hand and
PW-11 on the other, in respect of the nature of burn injuries
suffered on different body parts of the victim. While the doctor
acknowledges
that burn injuries included the hands of the victim,
the police officer claims that her hands were safe and she could
put her thumb impression. The thumb impression is seen very
scrupulously and the same appears to be absolutely natural. If
that is so, the medical officer, whose statement should carry more
weightage in respect of the nature and gravity of injuries, stands
belied. Fifthly, and most importantly the police officer PW-11
candidly admits that he did not seek an endorsement from the
doctor as to whether the injured was in a fit state of mind to make
a statement, before he proceeded to record the statement. Both
the police officer as well as the doctor have tried to cover up this
serious lacuna by referring to the purported oral endorsement of
the doctor. It appears that the police officer was in full command
of the situation and with a view to fill up the legal lacuna, he later
on secured the endorsement from the doctor PW-16 on the
available space of the paper, which is ex-facie unusual and not in
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line with settled legal procedure. Sixthly, the alleged motive for
the homicidal death is highly doubtful. There is not an iota of
evidence, and the prosecution has made no effort to verify the
truth in the statement that the appellants poured kerosene and
lit the victim on fire only because her son had assaulted the
husband of Appellant No.1 and the accused were insisting on
payment of Rs.4,000/- which was spent on the treatment of the
said assault–victim. Not much can be said when the deceased’s
own son and daughter-in-law have denied this incident and rather
claimed that their mother/mother-in-law committed suicide. The
Seventh reason to dissuade from harping upon the dying
declaration is the conduct of the parties, i.e., a natural recourse
expected to happen. Had it been a case of homicidal death, and
the victim’s son PW-2 and her daughter-in-law PW-5 had witnessed
the occurrence, then in all probabilities, they would have, while
making arrangement to take the injured to hospital, definitely
attempted to lodge a complaint to the police. Contrarily, the
evidence of the doctor and the police officer suggest that while
the son, daughter-in-law and neighbour of the deceased were
present in the hospital, none approached the police to report
such a ghastly crime. It is difficult to accept that the son and
daughter-in-law of the deceased were won over by the accused
persons within hours of the occurrence. This unusual conduct
and behaviour lends support to
the parallel version that the victim
might have committed suicide. The Eighth reason which makes
this Court reluctant to accept the contents of purported dying
declaration, is the fact that victim was brought to the Civil Hospital
at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries
after almost 30 hours later at 5:30 am on 23.09.1998. It is neither
the case of prosecution nor has it been so stated by PW-11 or
PW-16 that soon after recording her statement she became
unconscious or went into coma. The prosecution, therefore, had
sufficient time to call a Judicial/Executive Magistrate to record
the dying declaration. It is common knowledge that such Officers
are judicially trained to record dying declarations after complying
with all the mandatory pre-requisites, including certification or
endorsement from the Medical Officer that the victim was in a fit
state of mind to make a statement. The law does not compulsorily
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require the presence of a Judicial or Executive Magistrate to
record a dying declaration or that a dying declaration cannot be
relied upon as the solitary piece of evidence unless recorded by
a Judicial or Executive Magistrate. It is only as a rule of prudence,
and if so permitted by the facts and circumstances, the dying
declaration may preferably be recorded by a Judicial or Executive
Magistrate so as to muster additional strength to the prosecution
case. [Para 22][31-G-H; 32-A-H; 33-A-H; 34-A-D]
3. The High Court’s view regarding conviction of the
appellants is departed from because the power of scrutiny
exercisable by the High Court under Section 378, CrPC should
not be routinely invoked where the view formed by the trial court
was a ‘possible view’. The judgment of the trial court cannot be
set aside merely because the High Court finds its own view more
probable, save where the judgment of the trial court suffers from
perversity or the conclusions drawn by it were impossible if there
was a correct reading and analysis of the evidence on record. To
say it differently, unless the High Court finds that there is
complete misreading of the material evidence which has led to
miscarriage of justice, the view taken by the trial court which can
also possibly be a correct view, need not be interfered with. This
self-restraint doctrine, of course, does not denude the High Court
of its powers to re-appreciate the evidence,
including in an appeal
against acquittal and arrive at a different firm finding of fact.
[Para 23][34-E-G]
4. It may be seen that the High Court dealt with the appeal
against acquittal summarily and did not even discuss the ocular
evidence, especially of the son and daughter-in-law of the
deceased, who have, to some extent, belied the version of the
doctor (PW-16) or the investigating officer (PW-11). It is said so
because according to (PW-2), son of the deceased, the victim
had lost consciousness and was unable to speak at the time when
she was rushed to the hospital in a bullock cart arranged by (PW-
3). Without discarding or disbelieving such statement(s), it is
difficult to accept that injured was in a fit state of mind at 1:15
a.m. when the alleged dying declaration was recorded. Her state
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of mind can be well imagined due to the combined effect of the
trauma and the administration of painkillers. The High Court, on
the other hand, relied upon the dying declaration as the same
was purportedly corroborated by the statements of doctor (PW-
16), and the police official (PW-11) who authored the document.
Such a conclusion, is totally erroneous and based upon misreading
of the evidence on record. According to PW-16, the victim had
suffered 80% injuries including on her hands. As against it, the
Police Officer PW-11 claims that there were no burn injuries on
the hand of the victim, hence she could put her left thumb
impression on the dying declaration. These glaring contradictions
should not have gone unnoticed by the High Court. [Para 24]
[34-H; 35-A-E]
5. The document itself recites that son of the injured-
deceased, had beaten the husband of Appellant No. 1 and the
appellants had statedly incurred medical expenses to the tune of
Rs. 4,000/- which they demanded from the injured-deceased and
then they doused kerosene and set her on fire. In the absence of
any provocation from the side of injured, the cause itself being
so trivial in nature and the factum of causing any injuries to the
husband of Appellant No. 1 having been expressly denied by the
daughter-in-law of the deceased, coupled with the fact that there
is no evidence whatsoever to prove that any such incident took
place, the so-called motive has not been proved at all and the
declaration,
thus, recites a non-existent incident. [Para 25]
[35-E-G]
6. The Additional Session Judge, formulated point as to
whether the prosecution was able to prove beyond all reasonable
doubt that the accused persons with an intention to kill the victim
went to her house and picked up a quarrel in connection with a
previous dispute and then doused her with kerosene and set her
ablaze. The Additional Sessions Judge extensively examined the
entire evidence and after reaching to the conclusion that all the
witnesses of the motive or the occurrence have resiled and
declared hostile, he was left with the residuary question to decide
as to whether the death was suicidal or homicidal. He, thereafter,
considered the dying declaration threadbare and critically
analysed the statements of PW-11 and PW-16. The factors like
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interpolation in the dying declaration; contradiction in the
statements of PW-11 and PW-16 regarding injuries on the palm;
the victim with 80% injuries was apparently not in a situation to
talk or give statement; son of the deceased himself stated that
his mother committed suicide as she could not bear that her
another son had been sent to jail; there being no corroborative
evidence to the statement; and there is no other evidence led by
the prosecution to connect the appellants with the crime except
the statement, he held it unsafe to convict the appellants on the
solitary basis of the dying declaration. The view taken by the
trial court is fully endorsed. The reasons which assigned are
sufficient to cast doubts on the genuineness of the prosecution
case. Thus, it is difficult to uphold the conviction only on the
basis of the dying declaration. [Paras 26 & 27][35-H; 36-A-E]
Chandrappa v. State of Karnataka (2007) 4 SCC 415 :
[2007] 2 SCR 630; Perla Somasekhara Reddy and
Others v. State of A.P. (2009) 16 SCC 98: [2009] 8
SCR 145 ; State of Rajasthan v. Shera Ram (2012) 1
SCC 602 : [2011] 15 SCR 485; Shyam Babu v. State of
Uttar Pradesh (2012) 8 SCC 651 : [2012] 8 SCR 255;
Murugesan v. State (2012) 10 SCC 383 : [2012]
13 SCR 1; Mookkiah v. State (2013) 2 SCC 89 : [2013]
2 SCR 881; Shivasharanappa v. State of Karnataka
(2013) 5 SCC 705 : [2013] 5 SCR 1104; Surinder
Kumar v. State of Haryana (2011) 10 SCC 173 : [2011]
12
SCR 1205; Paparambaka Rosamma & Ors v. State
of A.P. (1999) 7 SCC 695 : [1999] 2 Suppl.  SCR 328;
Vijay Pal v. State (Government of NCT of Delhi) (2015)
4 SCC 749 : [2015] 3 SCR 394 – referred to.
Case Law Reference
[2007] 2 SCR 630  
referred to
Para 9
[2009] 8 SCR 145  
referred to
Para 9
[2011] 15 SCR 485 
referred to
Para 9
[2012] 8 SCR 255 
referred to
Para 9
[2012] 13 SCR 1 
referred to
Para 9
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[2013] 2 SCR 881  
referred to
Para 9
[2013] 5 SCR 1104 
referred to
Para 9
[2011] 12 SCR 1205
referred to
Para 9
[1999] 2 Suppl.  SCR 328 
referred to
Para 9
[2015] 3 SCR 394
referred to
Para 10
[2003] 1 Suppl.  SCR 745  
referred to
Para 14-A
(2003) 1 SCC 112
referred to
Para 14-B
[2006] 5 Suppl.  SCR 709  
referred to
Para 14-C
[1992] 2 SCR  197 
referred to
Para 14-C
[2019] 5 SCR 904 
referred to
Para 17
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 758 of 2010.
From the Judgment and Order dated 29.07.2008 of the High Court
of Karnataka, at Banglore in Criminal Appeal No. 672 of 2002.
With
Criminal Appeal No. 573 of 2016.
Shekhar G. Devasa, Manish Tiwari, Rahul Kulhare for M/S.
Devasa & Co., Vijay Kumar, Ms. Vidushi Garg, Ms. Vithika Garg, Advs.
for the Appellants.
Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,
Advs. for the Respondent.
The Judgment of the Court was delivered by
SURYA KANT, J.
These Criminal Appeals, which have been heard through video
conferencing, are directed against the common judgment dated 29.07.2008
passed by the High Court of Karnataka at Bangalore whereby the findings
of the trial Court were reversed and after setting aside the appellants’
acquittal, they have been convicted for offence punishable under Section
302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and
consequently sentenced to life imprisonment.
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FACTS
2. The parties in the present case are closely related. The case of
the prosecution is that there was a long-standing animosity between the
families of Jayamma wife of Reddinaika (Appellant No.1) and Jayamma
wife of Sanna Ramanaika (deceased) and in connection thereto, a quarrel
took place on 10.09.1998 in which, Thippeswamynaika son of the
deceased assaulted and injured Reddinaika (Husband of Appellant No.1).
Thereafter the appellants allegedly went to the house of the deceased
on 21.09.1998 and confronted her about the assault on Reddinaika. The
appellants demanded Rs. 4,000/- for the cost incurred on the medical
treatment of Reddinaika. After a heated exchange of words, the
appellants allegedly doused the deceased-Jayamma in kerosene and set
her on fire. Specific roles have been attributed to all the appellants in
respect thereto. Upon hearing the wails of Jayamma, her other son Ravi
Kumar (PW-2) and daughter-in-law Saroja Bai (PW-5; wife of Thippeshi
or Thippeswamynaika) came to the spot and tried to extinguish the fire.
The appellants meanwhile ran away from the spot. Since Jayamma was
seriously injured, PW-2 sought help from Kumaranaika (PW-3) to shift
Jayamma to the hospital. PW-2 and PW-3 then took the injured-Jayamma
on a bullock cart to Primary Health Centre (P.H.C.), Thalak and there
Dr. A. Thippeswamy (PW-16) provided primary treatment to the injured-
Jayamma, including, administering her certain pain
killers. Dr. A.
Thippeswamy (PW-16) sent medico-legal case information to the Thalak
Police Station, and on receipt thereof, SHO K.V. Mallikarjunappa (PW-
11) reached the hospital and recorded the statement of the injured
Jayamma (Ex. P-5) in the presence of PW-16. Jayamma in her statement
implicated all the appellants. On the basis of the said statement, Crime
No. 101 of 1998 was registered at the Thalak Police Station under
Sections 504, 307, 114 read with Section 34 of IPC. Owing to the
seriousness of injuries, the victim was later shifted to Government
Hospital, Chitradurga. However, on 23.09.1998 at 5:30 AM, Jayamma
succumbed to her injuries.
3. Upon being notified about the death of Jayamma, the Police
sent a requisition to the Court, requesting that offence under Section 307
read with Section 34 IPC be altered to offence under Section 302 read
with Section 34 IPC. ASI J. Sanjeeva Murthy (PW-14) thereupon visited
the Hospital and conducted the inquest. The body was sent for post
mortem examination and a report was made by Dr. Sunil Chowhan (PW-
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19), wherein, it was opined that Jayamma died of shock due to extensive
burn injuries. Thereafter, the police visited the spot, drew the mahazar
and made certain seizures in the presence of Rameshnaika (PW-1) and
Eshwarnaika (PW-15). During the course of further investigation, PSI
Chandrahas Naik (PW-13) and CPI Shankar (PW-18) recorded the
statements of witnesses and arrested the appellants. Appellant No.1,
however, was able to obtain anticipatory bail and was, thus, released
after her arrest.
4. After the completion of investigation and filing of charge-sheet,
the case was committed to the court of Additional Sessions Judge at
Chitradurga. Charges were framed under Sections 504, 302, 114 read
with Section 34 IPC against the appellants, to which they pleaded not
guilty and claimed trial. The prosecution examined nineteen witnesses
and thirteen documents to establish the guilt of the accused. The case of
the appellants, as recorded in their statements under Section 313 of the
Code of Criminal Procedure, 1973 (“CrPC”) was one of total denial. No
defense evidence was led by them.
5. During the course of trial, several prosecution witnesses turned
hostile. PW-2, son of the deceased, put forward an alternative chain of
events wherein he claimed that the deceased committed suicide because
she couldn’t bear the fact that her son Thippeswamynaika was arrested
and sent to jail for beating husband of the 1st appellant. PW-2 further
stated that the deceased was
unable to speak after the incident. In a
similar vein, daughter-in-law of the deceased (PW-5) also contradicted
the prosecution version and denied any knowledge as to how the deceased
died. Regarding the arrest of her husband Thippeswamynaika, PW-5
disputed the fact that any quarrel had taken place on 10.09.1998 and
claimed that she was not aware of the reason behind her husband’s
arrest. PW-1 and PW-15 who are mahazar witnesses also did not support
the prosecution case; they denied being called by the Police and stated
that nothing was seized in their presence. The only material witnesses
who supported the prosecution version were PW-11 (K.V.
Mallikarjunappa) and PW-16 (Dr. A. Thippeswamy). They deposed that
the statement of the deceased (Ex.P-5), accusing the appellants for the
murderous attack on her was genuine and voluntary.
6. Since it was not in dispute that Jayamma died due to burn
injuries, the crucial question before the trial Court was whether the death
was suicidal or homicidal. The trial Court noted that the sole material on
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record to connect the accused persons with the offence of murder was
the statement of the deceased Ex.P5, which was being treated as a
dying declaration. The prosecution heavily banked upon the said statement
in order to prove the guilt of the accused. However, upon considering
the mitigating circumstances such as testimonies of the hostile witnesses,
nature of burn injuries of the victim, and the lack of any corroborative
evidence, the trial Court was of the opinion that the prosecution had
failed to prove the genuineness of Ex.P5 beyond all reasonable doubt.
The evidence of PW-11 and PW-16 who had supported the prosecution
case was found to be vague and unsatisfactory. Consequently, the Court
held that the prosecution had failed to discharge its onus and acquitted
the appellants.
7. The High Court in appeal reversed the findings of the trial
Court and held that the evidence consisting of dying declaration was
clinching and sufficient to bring the guilt home. While several arguments
appear to have been raised on behalf of the appellants, the High Court
brushed aside the same, plainly stating that no credence could be attached
to the testimonies of the hostile witnesses. The High Court instead placed
emphasis on the testimonies of PW-11 and PW-16 who had corroborated
the contents of the dying declaration (Ex.P-5). The High Court found no
good ground to disbelieve either the testimonies of PW-11 and PW-16,
or the
contents of the dying declaration (Ex.P-5), and reversed the
acquittal awarded by the trial court. The appellants were consequently
convicted under Section 302 read with Section 34 IPC and sentenced to
life imprisonment.
8. Discontented with the order of the High Court, the appellants
have assailed their conviction and sentence through these two criminal
appeals. Since the High Court has summed up its conclusions by way of
a brief order, we deem it appropriate to reproduce the two relevant
paragraphs no.4 and 6 of its impugned judgment which are to the following
effect:-
“4. On through consideration we find that although the
material witnesses PWs.2 and 5 have turned hostile, the
evidence placed by the prosecution by way of dying
declaration is very much clinching. PW 11 recorded statement
and testified the fact of recording statement at Ex.P-5 and his
evidence also discloses that it was recorded in the presence
of the doctor PW16 and the doctor has given endorsement at
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Ex.P-5. He has also deposed that the deceased was in a fit
state of mind and she gave the statement voluntarily which
was recorded by PW11 in his presence. The contents of Ex.P-
5 implicates all the accused for causing murder with common
intention.
xxx xxx xxx
6. On thoroughly going through the documents, we find that
no credence could be attached to the evidence of the witnesses
who have turned hostile. PW16 is an independent witness.
The evidence of PW 16 discloses that the deceased made a
statement at Ex.P-5 and it is voluntarily and that she was in a
fit state of mind to give her statement. The evidence of PW 11
shows that he recorded statement in the presence of PW16
and Ex.P-5 contains the endorsement of the doctor. There is
no good reason to disbelieve the version of PWs. 1 (sic) and
16 and the contents of Ex.P-5. The autopsy report discloses
that the death is on account of burn injuries which
corroborates the e=contents (sic) of Ex.P-5. In view of the
above, we find that the acquittal is bad in law and hence, the
same is set aside. In the result we pass the following order:
The appeal is allowed. Accused Nos. 1 to 4 are convicted for
an offence punishable under Section 302 read with Section
34 of IPC. The accused persons are sentenced to life
imprisonment.”
CONTENTIONS
9. We have heard learned counsels for the parties at considerable
length and perused the record in-depth. The principal contentions raised
on behalf of the appellants are that the
High Court’s order is totally
cryptic and it erroneously reversed the well-reasoned order of acquittal
passed by trial Court. Relying upon a catena of decisions of this Court
including in the cases of Chandrappa v. State of Karnataka1, Perla
Somasekhara Reddy and Others v. State of A.P.2, State of Rajasthan
v. Shera Ram3, Shyam Babu v. State of Uttar Pradesh4, Murugesan
1 (2007) 4 SCC 415.
2 (2009) 16 SCC 98.
3 (2012) 1 SCC 602.
4 (2012) 8 SCC 651.
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v. State5, Mookkiah v. State6, and Shivasharanappa v. State of
Karnataka7, it was urged that the High Court while interfering with an
order of acquittal was under an onerous duty to scrutinize the evidence
on record, and should return a categorical and cogent finding as to why
it was impossible to sustain the order of the trial Court or why it deserved
interference. It was contended that neither did the High Court evaluate
the entire evidence nor it dealt with the specific findings of the trial
Court, and as such, the High Court failed to discharge its obligation under
Section 378 CrPC. It was further argued that in the facts and
circumstances of the present case, Ex. P-5 i.e., the purported dying
declaration cannot form the sole basis to convict the appellants. Relying
upon the decision of this Court in Surinder Kumar v. State of Haryana8,
it was canvassed that since the document Ex.P-5 was shrouded with
doubtful circumstances, the same cannot be acted upon to be the solitary
basis for conviction in the absence of any corroboration. Learned Counsel
also drew our attention to Paparambaka Rosamma & Ors v. State of
A.P.9 and argued that in the absence of a medical certificate attesting to
mental fitness of the deceased before recording of the dying declaration,
the High Court ought not to have placed any reliance upon Ex.P-5. It
was then submitted that the High Court overlooked the fact that the
prosecution has miserably
failed to establish any motive in the present
case and, thus, conviction of the appellants was untenable.
10. Per Contra, learned State Counsel supported the conviction
awarded by the High Court. He drew our attention to paragraphs 4 and
6 of the impugned order to suggest that the High Court had not only
given a well-reasoned judgment but also buttressed it with specific
reasons, warranting interference in the order of acquittal. Reliance was
placed on Vijay Pal v. State (Government of NCT of Delhi)10 in
order to contend that even in cases of hundred percent burn injuries, the
Courts can rely upon the dying declaration to convict the accused.
ANALYSIS
11. In light of the rival contentions, the following questions fall for
our consideration.
5 (2012) 10 SCC 383.
6 (2013) 2 SCC 89.
7 (2013) 5 SCC 705.
8 (2011) 10 SCC 173, ¶ 25, 26 & 28.
9 (1999) 7 SCC 695 ¶ 8,9 &12.
10 (2015) 4 SCC 749.
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A. Whether the High Court erred in reversing the findings of the
trial Court in exercise of its powers under Section 378 of the
CrPC?
B. Whether the prosecution has successfully established that the
deceased died a homicidal death at the hands of the appellants?
12. It may be seen that the entire case revolves around the
evidentiary value of the purported dying declaration dated 22.09.1998
(Ex.P-5). The High Court has heavily relied upon it along with the
corroborative statements of K.V. Mallikarjunappa (PW-11), who is the
police officer who recorded Ex.P-5, and of Dr. A. Thippeswamy (PW-
16), who was present at the time of recording the dying declaration and
also endorsed the mental fitness of the deceased to make such statement.
It thus appears useful to reproduce the translated version of the said
dying declaration (Ex.P-5) which reads as follows:-
“I have been residing at the above given address. Today after
having food, I was sleeping in front of my house near
Kurukoppa, in the night at 10.00 pm a resident of our village
Reddy Nayak and his wife Jayamma, came near our
Kurukoppa and complained that since my son had beaten
her husband, she has spent four thousand rupees and scolded
in filthy language. I was keeping quite at that time. All of a
sudden Jayamma, wife of Reddy Nayak, Laccha Nayaka, son
of Chandra Nayak, Thippeshi, son of Rama Naika, Shankara
Nayaka, son of Namya Nayka all of them advanced towards
her and threatened to kill her, and poured
kerosene oil all
over her body and torched. Therefore, I have sustained burn
injuries over my hands and entire body. When I started
shouting, the Accused ran away from the spot. My son Ravi,
son of Rama Nayaka, and my daughter Sharadamma, wife of
Mallenayaka poured water all over my body, doused the fire,
and my son Ravi and my daughter Sharadamma took me to
Taluk Hospital in a cart for treatment. I pray for taking
suitable action against the Accused as provided in law.”
13. It is most relevant to mention at this stage that we have also
perused the original dying declaration (in Kannada language). The original
dying declaration begins with the statement of the injured, which is
purportedly based upon the questions asked by the police officer (PW-
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11), and right below the statement, there is the thumb impression of
injured (deceased). Immediately below there are signatures of the police
officer (PW-11) who recorded the dying declaration in his own hand
writing. Since very less space was left on the page, Dr. A. Thippeswamy
(PW-16) has on the left side of the paper written a line in broken words
which goes from south-west to north-east, endorsing that the “Patient
was in a sound state of mind at the time.” In the leftover available
space on the right hand side, the police officer (PW-11) has remarked
that the statement was recorded by him on 22.09.1998 in the night at
1.15 am in Thalak Hospital and thereafter he came to the police station
and registered a case crime no.101/1998 under Sections 504, 307 read
with 34 IPC. These remarks by PW-11 are written in a different ink, and
it further appears that PW-11 also used the same pen to make a ‘small
correction’ in the original dying declaration, i.e., some words, written in
a different ink, have been inserted between two lines of the dying
declaration.
14. Before we advert to the actual admissibility and credibility of
the dying declaration (Ex.P-5), it will be beneficial to brace ourselves of
the case-law on the evidentiary value of a dying declaration and the
sustenance of conviction solely based thereupon. We may hasten to add
that while there is huge wealth of case law, and incredible jurisprudential
contribution
by this Court on this subject, we are consciously referring to
only a few decisions which are closer to the facts of the case in hand.
We may briefly notice these judgments.
A.
In P.V. Radhakrishna. v. State of Karnataka11, this Court
considered the residuary question whether the percentage
of burns suffered is a determinative factor to affect the
credibility of a dying declaration and the probability of its
recording. It was held that there is no hard and fast rule of
universal application in this regard and much would depend
upon the nature of the burn, part of the body affected, impact
of burn on the faculties to think and other relevant factor.
B.
In Chacko v. State of Kerala12, this Court declined to
accept the prosecution case based on the dying declaration
where the deceased was about 70 years old and had
suffered 80 per cent burns. It was held that it would be
11 (2003) 6 SCC 443 ¶ 16.
12 (2003) 1 SCC 112 ¶ 3, 4.
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difficult to accept that the injured could make a detailed
dying declaration after a lapse of about 8 to 9 hours of the
burning, giving minute details as to the motive and the
manner in which he had suffered the injuries. That was of
course a case where there was no certification by the doctor
regarding the mental and physical condition of the deceased
to make dying declaration. Nevertheless, this Court opined
that the manner in which the incident was recorded in the
dying declaration created grave doubts to the genuineness
of the document. The Court went on to opine that even
though the doctor therein had recorded “patient conscious,
talking” in the wound certificate, that fact by itself would
not further the case of the prosecution as to the condition
of the patient making the dying declaration, nor would the
oral evidence of the doctor or the investigating officer, made
before the court for the first time, in any manner improve
the prosecution case.
C.
In Sham Shankar Kankaria v. State of Maharashtra13,
it was re-stated that the dying declaration is only a piece of
untested evidence and must like any other evidence satisfy
the Court that what is stated therein is the unalloyed truth
and that it is absolutely safe to act upon it. Further, relying
upon the decision in Paniben v. State of Gujarat14wherein
this Court summed up several previous judgments governing
dying declaration, the Court in Sham Shankar Kankaria
(Supra) reiterated::-
“(i) There is
neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P.[(1976)
3 SCC 104]);
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar
Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State
of Bihar [(1983)1 SCC 211]);
13 (2006) 13 SCC 165 ¶ 10, 11.
14 (1992) 2 SCC 474  ¶ 18.
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(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618]);
(iv) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence. (See
Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (See Kake Singh v. State of
M.P. [1981 Supp SCC 25]);
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (See Ram
Manorath v. State of U.P. [(1981) 2 SCC 654]);
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be
rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp SCC 455]);
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of
the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar [1980 Supp SCC 769]);
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where
the eyewitness has said
that the deceased was in a fit
and conscious state to make the dying declaration, the
medical opinion cannot prevail. (See Nanhau
Ram v. State of M.P. [1988 Supp SCC 152]);
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. (See State of U.P. v. Madan
Mohan [(1989) 3 SCC 390]);
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(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time
must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable,
it has to be accepted. (See Mohanlal Gangaram
Gehani v. State of Maharashtra [(1982) 1 SCC 700])”
15. It goes without saying that when the dying declaration has
been recorded in accordance with law, and it gives a cogent and plausible
explanation of the occurrence, the Court can rely upon it as the solitary
piece of evidence to convict the accused. It is for this reason that Section
32 of the Evidence Act, 1872 is an exception to the general rule against
the admissibility of hearsay evidence and its Clause (1) makes the
statement of the decease admissible. Such statement, classified as a
“dying declaration” is made by a person as to the cause of his death or
as to the injuries which culminated to his death or the circumstances
under which injuries were inflicted. A dying declaration is thus admitted
in evidence on the premise that the anticipation of brewing death breeds
the same human feelings as that of a conscientious and guiltless person
under oath. It is a statement comprising of last words of a person before
his death which are presumed to be truthful, and not infected by any
motive or malice. The dying declaration is therefore admissible in
evidence on the principle of necessity as there is very little hope of
survival of the
maker, and if found reliable, it can certainly form the
basis for conviction.
16. We may also take note of the decision of this Court in the
case of Surinder Kumar (Supra). In the said case, the victim was
admitted in hospital with burn injuries and her dying declaration was
recorded by an Executive Magistrate. This Court, first doubted whether
the victim could put a thumb impression on the purported dying declaration
when she had suffered 95-97 per cent burn injuries. Thereafter, it was
noted that “at the time of recording the statement of the
deceased…….no endorsement of the doctor was made about her
position to make such statement”, and only after the recording of the
statement did the doctor state that the patient was conscious while
answering the questions, and was “fit to give statement”. This Court
lastly noticed that before the alleged dying declaration was recorded,
the victim in the course of her treatment had been administered Fortwin
and Pethidine injections, and therefore she could not have possessed
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normal alertness. It was hence held that although there is neither a rule
of law nor of prudence that the dying declaration cannot be acted upon
without corroboration, the Court must nonetheless be satisfied that the
dying declaration is true and voluntary, and only then could it be the sole
basis for conviction without corroboration.
17. Consistent with the cited principles, this Court refused to uphold
the conviction in the case of Sampat Babso Kale and Another v. State
of Maharashtra15. The dying declaration in that case was made by a
victim who had suffered 98 percent burn injuries, and the statement was
recorded after the victim was injected with painkillers. This Court adopted
a cautious approach, and opined that there were serious doubts as to
whether the victim was in a fit state of mind to make the statement.
Given the extent of burn injuries, it was observed that the victim must
have been in great agony, and once a sedative had been injected, the
possibility of her being in a state of delusion could not be completely
ruled out. Further, it was specifically noted that “the endorsement made
by the doctor that the victim was in a fit state of mind to make the
statement has been made not before the statement but after the
statement was recorded. Normally it should be the other way
around.”
[emphasis supplied]
18. We may now proceed to evaluate the evidentiary value of
purported dying declaration (Ex.P-5). As
noticed earlier, the son and
daughter-in-law of the deceased, their neighbour and other witnesses
from the vicinity, have resiled and not supported the prosecution case.
Only two material witnesses are left out, one being police officer K.V.
Mallikarjunappa (PW-11) who is the author of the dying declaration, the
investigating officer and the prosecutor. The second, and more crucial
witness, is Dr. A. Thippeswamy (PW-16), who was working in the P.H.C.,
Thalak at the relevant time. As per his deposition, the statement of the
injured was taken in front of him and the patient was in a sound state of
mind at that time. PW-16 was the one who had informed the police
regarding admission of Jayamma (the deceased victim) in the hospital,
and in his cross-examination, he has admitted that painkillers were given
immediately after admission. He has acknowledged that in a case of
fourth degree burns the patient will be “delirious and in a period of
confusion”. He has not denied that due to painkillers there was bound
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to be drowsiness. He has also not denied that “hand, body was fully
burnt” and that “hand includes the fingers”. He has candidly owned
up that the police did not take his written permission before recording
the statement.
19. As regard to the version of K.V. Mallikarjunappa (PW-11), he
has deposed that he was the SHO of police station on the night when he
received a phone call from Taluka Government Hospital at about 12:45
a.m. He went to the hospital and noticed Jayamma with burn injuries.
According to him the doctor examined her and said that “she was in a
position to talk”, then the statement of Jayamma was taken in the presence
of the doctor and after he put in his signatures, the medical officer also
endorsed and signed it. In his cross-examination, PW-11 has stated that
“Jayamma’s son, daughter-in-law and one other person was also
present….”. He has, however, admitted that no written permission was
sought or taken before recording the statement of the injured and that he
“questioned Jayamma - the injured, as to how it happened. Then
she narrated about the incident.......... Jayamma - the injured,
narrated the details of the accused persons. The thumb impression
was taken since the said finger was not burnt”
20. It is a matter of record that Ravi Kumar (PW-2), son of the
deceased has been evasive as to who brought the injured to the hospital.
Rest of the prosecution case has also been denied by him. Even, Saroja
Bai (PW-5) daughter-in-law of the
deceased, has completely repudiated
the prosecution case. This set of evidence does not indicate or support
the prosecution case that the injured was in a position to speak or narrate
the incriminating events of the incident before or after she was rushed
to the hospital. Their version runs contrary to the statement of Dr. A.
Thippeswamy (PW-16) and the police officer K.V. Mallikarjunappa (PW-
11).
21. The litmus test, therefore, is whether the victim made the
statement (Ex.P-5) and if so, whether such statement can be the solitary
foundation for conviction of the appellants?
22. Having meditated over the issue to the extent it is possible,
and on a minute examination of the original document Ex.P-5 (without
understanding its contents as it is in Kannada language except that the
endorsement of the doctor is in English) read with its true translation
placed on record, we do not find it totally safe to convict the appellants
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on the basis of the said document alongwith its corroboration by PW-11
and PW-16. We say so for several reasons as summarised hereinafter:
Firstly, the narration of events in the dying declaration is so
accurate, that even a witness in the normal state of mind, cannot be
expected to depose with such precision. Although it is stated that deceased
was questioned by the Police officer, the purported dying declaration is
not in a questions and answers format. The direct or indirect dominance
of the Police Officer appears to have influenced the answers only in one
direction.
Secondly, the injured victim was an illiterate old person and it
appears beyond human probabilities that she would have been able to
narrate the minutes of the incident with such a high degree of accuracy.
Thirdly, there is sufficient evidence on record that the victim had
been administered highly sedative painkillers. Owing to 80% burn injuries
suffered by the victim on all vital parts of the body, it can be legitimately
inferred that she was reeling in pain and was in great agony and the
possibility of her being in a state of delusion and hallucination cannot be
completely ruled out. We say so at the cost of repetition that the doctor
(PW-16) made the endorsement that the victim was in a fit state of mind
to make the statement ‘after’ the statement was recorded and not ‘before’
thereto — being the normal practice. It further appears to us that
faculties
of the injured had been drastically impaired and instead of making
statement in an informative form she had apparently endorsed what the
Police Officer (PW-11) intended to. True it is that the Police Officer
(PW-11) had no axe to grind or a motive to implicate the appellants, but
his over-enthusiasm to solve a criminal case within no time seems to
have swayed the Police Officer (PW-11) so much that he appears to
have not asked the doctor to make an endorsement of fitness of the
victim before recording the statement. He also did not deem it appropriate
to call a Judicial or Executive Magistrate to record such statement, for
the reasons best known to himself.
Fourthly, there is a serious contradiction between the statement
of Dr. A. Thippeswamy (PW-16) on one hand and the police officer
K.V. Mallikarjunappa (PW-11) on the other, in respect of the nature of
burn injuries suffered on different body parts of the victim. While the
doctor acknowledges that burn injuries included the hands of the victim,
the police officer claims that her hands were safe and she could put her
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thumb impression. We have seen the thumb impression very scrupulously
and the same appears to be absolutely natural. If that is so, the medical
officer, whose statement should carry more weightage in respect of the
nature and gravity of injuries, stands belied.
Fifthly, and most importantly the police officer K.V.
Mallikarjunappa (PW-11) candidly admits that he did not seek an
endorsement from the doctor as to whether the injured was in a fit state
of mind to make a statement, before he proceeded to record the statement.
Both the police officer as well as the doctor have tried to cover up this
serious lacuna by referring to the purported oral endorsement of the
doctor. It appears that the police officer was in full command of the
situation and with a view to fill up the legal lacuna, he later on secured
the endorsement from the doctor (PW-16) on the available space of the
paper, which is ex-facie unusual and not in line with settled legal
procedure.
Sixthly, the alleged motive for the homicidal death is highly doubtful.
There is not an iota of evidence, and the prosecution has made no effort
to verify the truth in the statement that the appellants poured kerosene
and lit the victim on fire only because her son had assaulted the husband
of Appellant No.1 and the accused were insisting on payment of Rs.4,000/
- which was spent on the treatment of the said assault–victim. Not much
can be said when the deceased’s own son and daughter-in-law have
denied this
incident and rather claimed that their mother/mother-in-law
committed suicide.
The Seventh reason to dissuade us from harping upon Ex.P-5 is
the conduct of the parties, i.e., a natural recourse expected to happen.
Had it been a case of homicidal death, and the victim’s son (PW-2) and
her daughter-in-law (PW-5) had witnessed the occurrence, then in all
probabilities, they would have, while making arrangement to take the
injured to hospital, definitely attempted to lodge a complaint to the police.
Contrarily, the evidence of the doctor and the police officer suggest that
while the son, daughter-in-law and neighbour of the deceased were
present in the hospital, none approached the police to report such a ghastly
crime. It is difficult to accept that the son and daughter-in-law of the
deceased were won over by the accused persons within hours of the
occurrence. This unusual conduct and behaviour lends support to the
parallel version that the victim might have committed suicide.
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The Eighth reason which makes us reluctant to accept the
contents of purported dying declaration (Ex. P-5), is the fact that victim,
Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998.
She succumbed to her burn injuries after almost 30 hours later at 5:30
am on 23.09.1998. It is neither the case of prosecution nor has it been so
stated by PW-11 or PW-16 that soon after recording her statement (Ex.
P-5) she became unconscious or went into coma. The prosecution,
therefore, had sufficient time to call a Judicial/Executive Magistrate to
record the dying declaration. It is common knowledge that such Officers
are judicially trained to record dying declarations after complying with
all the mandatory pre-requisites, including certification or endorsement
from the Medical Officer that the victim was in a fit state of mind to
make a statement. We hasten to add that the law does not compulsorily
require the presence of a Judicial or Executive Magistrate to record a
dying declaration or that a dying declaration cannot be relied upon as the
solitary piece of evidence unless recorded by a Judicial or Executive
Magistrate. It is only as a rule of prudence, and if so permitted by the
facts and circumstances, the dying declaration may preferably be recorded
by a Judicial or Executive Magistrate so as to muster additional strength
to the prosecution case.
23. The other important reason to depart from the High Court’s
view re. conviction of the appellants is that the power of scrutiny
exercisable by the High Court under Section 378, CrPC should not be
routinely invoked where the view formed by the trial court was a ‘possible
view’. The judgment of the trial court cannot be set aside merely because
the High Court finds its own view more probable, save where the judgment
of the trial court suffers from perversity or the conclusions drawn by it
were impossible if there was a correct reading and analysis of the evidence
on record. To say it differently, unless the High Court finds that there is
complete misreading of the material evidence which has led to miscarriage
of justice, the view taken by the trial court which can also possibly be a
correct view, need not be interfered with. This self-restraint doctrine, of
course, does not denude the High Court of its powers to re-appreciate
the evidence, including in an appeal against acquittal and arrive at a
different firm finding of fact.
24. If the case in hand is evaluated on these parameters, it may
be seen from paragraphs 4 and 6 of its order that the High Court dealt
with the appeal against acquittal summarily and did not even discuss the
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ocular evidence, especially of the son and daughter-in-law of the
deceased, who have, to some extent, belied the version of the doctor
(PW-16) or the investigating officer (PW-11). We say so for the reason
that according to Ravi Kumar (PW-2), son of the deceased, the victim
Jayamma had lost consciousness and was unable to speak at the time
when she was rushed to the hospital in a bullock cart arranged by
Kumaranaika (PW-3). Without discarding or disbelieving such
statement(s), it is difficult to accept that injured — Jayamma was in a fit
state of mind at 1:15 a.m. when the alleged dying declaration was
recorded. Her state of mind can be well imagined due to the combined
effect of the trauma and the administration of painkillers. The High Court,
on the other hand, relied upon the dying declaration (Ex.P-5) as the
same was purportedly corroborated by the statements of doctor (PW-
16), and the police official (PW-11) who authored the document (Ex.P-
5). Such a conclusion, in our considered opinion, is totally erroneous and
based upon misreading of the evidence on record. It has already been
noticed that according to the doctor (PW-16), the victim had suffered
80% injuries including on her hands. As against it, the Police Officer
(PW-11) claims that there were no burn injuries on the hand of the victim,
hence she could put her left thumb impression on the dying declaration
(Ex.P-5). These glaring contradictions should not have gone unnoticed
by the High Court.
25. At this juncture, we may also delve into the nature of motive
attributed to the appellants. The document (Ex. P-5) itself recites that
son of the injured-deceased, Thippeswamynaika, had beaten the husband
of Appellant No. 1 and the appellants had statedly incurred medical
expenses to the tune of Rs. 4,000/- which they demanded from the injured-
deceased and then they doused kerosene and set her on fire. In the
absence of any provocation from the side of injured, the cause itself
being so trivial in nature and the factum of causing any injuries to the
husband of Appellant No. 1 having been expressly denied by the daughter-
in-law of the deceased, namely, Saroja Bai (PW-5), coupled with the
fact that there is no evidence whatsoever to prove that any such incident
took place, we are satisfied that the so-called motive has not been proved
at all and the declaration Ex. P-5, thus, recites a non-existent incident.
26. The Additional Session Judge, Chitradurga in his judgment
dated 30.11.2001 formulated point no. 1 as to whether the prosecution
was able to prove beyond all reasonable doubt that the accused persons
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G
H
36
SUPREME COURT REPORTS
[2021] 5 S.C.R.
with an intention to kill Jayamma went to her house and picked up a
quarrel in connection with a previous dispute and then doused her with
kerosene and set her ablaze. The Additional Sessions Judge extensively
examined the entire evidence and after reaching to the conclusion that
all the witnesses of the motive or the occurrence have resiled and declared
hostile, he was left with the residuary question to decide as to whether
the death was suicidal or homicidal. He, thereafter, considered the dying
declaration (Ex. P-5) threadbare and critically analysed the statements
of the police officer (PW-11) and the doctor (PW-16). The factors like
(i) interpolation in the dying declaration Ex.P-5, (ii) contradiction in the
statements of PW-11 and PW-16 regarding injuries on the palm, (iii) the
victim with 80% injuries was apparently not in a situation to talk or give
statement, (iv) PW-2, son of the deceased himself has stated that his
mother committed suicide as she could not bear that her another son had
been sent to jail, (v) there being no corroborative evidence to the statement
Ex.P-5, and (vi) there is no other evidence led by the prosecution to
connect the appellants with the crime except the statement Ex.P-5, he
held it unsafe to convict the appellants on the solitary basis of the dying
declaration (Ex. P-5).
27. We fully endorse the view taken by the learned trial court.
The reasons which we have assigned in paragraph
22 of this Order are
sufficient to cast clouds on the genuineness of the prosecution case. We
find it difficult to uphold the conviction only on the basis of the dying
declaration Ex. P-5.
28. Consequently, and for the reasons aforestated, both the appeals
are allowed. The impugned order dated 29.07.2008 of the High Court is
set aside and the appellants are set free. Since, they are already on bail,
their bail bonds are discharged.
Nidhi Jain
Appeals allowed.