Karnataka High Court
Mohammed Ismail vs State By Women Police on 19 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2026:KHC:10405-DB
CRL.A No. 1995 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1995 OF 2018
BETWEEN:
1. MOHAMMED ISMAIL
S/O LATE ABDUL KHUDDUS
AGED ABOUT 37 YEARS
R/O HONNUDIKE VILLAGE
GULUR HOBLI
TUMAKURU TALUK AND
DISTRICT-572122.
...APPELLANT
(BY SRI. SHAIKH SAOUD, ADVOCATE)
Digitally signed AND:
by DEVIKA M
Location: HIGH
COURT OF 1. STATE BY WOMEN POLICE
KARNATAKA TUMAKURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
...RESPONDENT
(BY SRI. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 15.09.2018 AND ORDER OF SENTENCE
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NC: 2026:KHC:10405-DB
CRL.A No. 1995 of 2018
HC-KAR
DATED 18.09.2018 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMAKURU, IN S.C.NO.119/2017 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 304(B) OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard Sri Shaikh Saoud, learned counsel appearing for the appellant and Smt. Rashmi Jadhav, learned Addl. SPP appearing for the respondent-State.
2. This appeal is filed by the accused challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 302 of the Indian Penal Code (for short, "IPC"), sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-, and also for the offence punishable under Section 304B of IPC, sentencing him to undergo rigorous imprisonment for a period of 10 years. -3-
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3. The factual matrix of the case of the prosecution is that the deceased is the wife of the accused and both of them were married on 27.08.2016 at Mysuru and on 05.07.2017 at 03.00 p.m., in the house of the accused, he asked her to get meals from the hotel. When she refused, the accused abused her in filthy language and humiliated her and then poured kerosene and set her on fire and as a result she sustained burn injuries and immediately the neighbours i.e., PW2 and PW3 shifted the injured to the hospital in an ambulance and after getting the intimation from the hospital, Smt.Indiramma, WHC- 482 went to the hospital and recorded the statement of the injured and registered the case in Crime No.69 of 2017 for the offences punishable under Sections 498A, 307 and 504 of IPC and subsequent to her death invoked the offences under Sections 304B and 302 of IPC.
4. The Investigating Officer conducted the investigation and filed the charge sheet and the accused was secured before the Trial Court and the Court took -4- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR cognizance and thereafter framed the charges. The accused did not plead guilty and hence, the prosecution examined witnesses P.W.1 to P.W.15 to substantiate the case and also marked documents Exs.P1 to P37 and also MO.1 to MO.7. On closure of the evidence of prosecution case, recorded the statement of the accused under Section 313 of Cr.P.C and accused did not choose to lead any evidence. The Trial Court having assessed both oral and documentary evidence, convicted the accused for the above offences. The main contention of the counsel appearing for the appellant in his argument that the prosecution though relies upon the prosecution witnesses and witnesses P.W.2, P.W.3 and P.W.4 are the neighbours who have not supported the case of prosecution and turned hostile. The P.W.1 is the father of the deceased. The counsel would vehemently contend that the prosecution mainly relies upon the document of Ex.P.29 - dying declaration. Having considered Ex.P.29, there is no any such endorsement by the Doctor that she was -5- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR competent to make the statement. The counsel also brought to notice of this Court that dying declaration was recorded by P.W.12 and her evidence also not inspires the confidence of the Court. The counsel would submits that it is the specific defence of the accused/appellant that when he comes to know about the incident, immediately he rushed to the house and he only broke open the door and tried to extinguish the fire. The counsel would contend that the said defence is not accepted by the Trial Court and the Trial Court fails to take note of the fact that he had also suffered the burn injuries when he tried to save the life of his wife. The counsel would contend when the DVD is placed before the Court and no certificate under Section 65B(4) of Indian Evidence Act is produced and no any ash value whether it is tampered or not. The counsel would contend that the evidence of P.W.11 before the Court is that P.W.2 and P.W.3 brought her to hospital and admittedly she has suffered burn injuries to an extent of 90%. The counsel would submits that when the 313 -6- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR statement was recorded second time, he has given the explanation how he had sustained the injuries and how he came to know about the incident. The counsel would vehemently contend that the dying declaration is not true and same cannot be a sole material to convict the accused. Having considered overall evidence available on record, particularly Ex.P.20 Ex.P.28 and Ex.P.29, the prosecution has not made out the case.
5. Per contra, the learned Addl. SPP appearing for the respondent-State, Rashmi Jadhav would submits that Ex.P.29 was recorded by P.W.12 that too in the presence of the Doctor. When the requisition was given in terms of Ex.P28 and Doctor has certified on the very requisition itself that she is having conscious and oriented and she can give statement. The counsel also would contend that Ex.P.20 is the document of spot mahazar and though defence was taken that he only tried to save the life of his wife and not found in Ex.P.20 with regard to the same. The counsel also submits that Court has to take note of -7- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR conduct of the accused and when the wife was suffering from burn injuries and an ordinary prudent man as a husband would shift the wife to the hospital, but the evidence of the Doctor who has been examined as P.W.11 is very clear that P.W.2 and P.W.3 have brought the victim to the hospital in an Ambulance. Though P.W.2 and P.W.3 have turned hostile, the evidence of Doctor is very clear that both P.W.2 and P.W.3 brought her to the hospital and even in the cross-examination of the Doctor also, not denied the same.
6. The counsel would submits that when the CD was marked as MO.1 through the Doctor, since Doctor was also present at the time of recording of dying declaration, spoken about the same and also the same is played before the Court and same is not objected by the defence at the time of marking and also even during the course of cross-examination of the Doctor, nothing is suggested that the same was not recorded by the P.W.12. The counsel would submits that P.W.12 who recorded the -8- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR dying declaration categorically deposes before the Court that she has recorded the statement of the victim in the mobile and even during the course of cross examination of P.W.12 also, nothing is disputed that she did not record the statement of the victim in the mobile and no dispute to that effect.
7. The counsel would submits that the document Ex.P20 is very clear with regard to the scene of occurrence and no such breaking open the door by the accused as defence was taken and even though in 313 Statement stated like that but, he did not explain the same in his 313 statement why he did not shift the injured victim to the hospital immediately when he comes to know about the burn injuries on the wife. The counsel also submits that the material available before the Court is very clear that accused only poured the kerosene and set the fire. It is very clear that quarrel was taken place with regard to the providing of meal in the said house and incident was taken place at 3:00 'O' clock and immediately thereafter, she -9- NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR was shifted to hospital and her statement was recorded in the very evening without any delay. The counsel would submits that MO.1 is CD and MO.2 is a Can and MO.3 to MO.5 are match box, half burnt cloth and also the ash was collected and marked and hence, not a case for acquittal.
8. Having heard the learned counsel for appellant and also the learned Addl. SPP appearing for respondent- State and in keeping the grounds which have been urged in the appeal as well as considering both oral and documentary evidence available on record, the point that would arise for the consideration of this Court are:
i) Whether the Trial Court committed an error in convicting the accused for both the offences under Section 302 and Section 304B of Indian Penal Code and the conviction and sentence imposed by the Trial Court requires interference of this Court?
ii) What Order?
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR Point Nos.1 and 2:
9. Having considered both oral and documentary evidence available on record and we have given our anxious consideration to both the evidence. No dispute with regard to the fact that marriage was taken place on 27.08.2016 and incident was taken place on 05.07.2017. It is also not in dispute that incident was taken place in the matrimonial home of the accused and also victim had sustained the burn injuries to an extent of 90%. When the Victim has sustained burn injury to an extent of 90%, question also arises before this Court whether with the burn injury of 90%, she could be able to give any statement before the P.W.12 and whether she was conscious and capable enough to give statement. The prosecution mainly relies upon the document of Ex.P.29.
10. It is also important to note that before recording dying declaration as per Ex.P.29 and Ex.P.28 requisition was given to the Doctor, the Doctor made an endorsement on the requisition itself that she is conscious
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR and oriented and though counsel appearing for the appellant would submits that no such endorsement on Ex.P.29 and when the requisition was made and also asked the Doctor whether she was able to give such statement on the very requisition itself, endorsement was made and hence, the contention of the appellant's counsel cannot be accepted that there was no any endorsement on Ex.P.29. Having perused the Ex.P.29-dying declaration, it is very clear that victim made the statement that accused was abusing that she did not beget the child even after the marriage and also he was quarrelling with her. That on 05.07.2017 at 3:00 p.m., accused himself brought the food from the hotel and asked her to take the food, but when she refused, he abused in a filthy language stating that she did not cook the food, but when the same is brought from the hotel also, she is not ready to take the same and immediately assaulted with his hands and with an intention to take away her life, brought the kerosene can and poured on her and told that she would not beget
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR the children and he is going to conduct second marriage and lit the fire and even did not put water to extinguish the fire. When she screamed at the spot, immediately P.W.2 and P.W.3 rushed to the house and brought the Ambulance and both of them shifted her to the hospital and hence, she has given the statement in the presence of the Doctor. The Doctor also made an endorsement on that statement and the statement was recorded at 6:15 p.m., in the presence of the Doctor and based on this dying declaration, case was registered. Now this court has to examine the evidence of P.W.11 and P.W.12.
11. The Doctor-P.W.11 in her evidence categorically deposes that P.W.2 and P.W.3 brought her to the hospital in an Ambulance and though P.W.2 and P.W.3 have turned hostile and did not speak anything about the fact that they did not shift the injured to the hospital, but evidence of P.W.11 is very clear, even mentioned the name of these two persons that they brought her to hospital in 108 ambulance and hence, it is very clear that P.W.2 and
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR P.W.3 are won over by the accused. The Doctor also says that she was conscious and oriented and she was able to give statement and to that effect Doctor certified that she was able to give statement. It is also her evidence that PSI of Women Police Station has submitted requisition in terms of Ex.P.28 and also recorded the statement of the victim in the casualty itself and the said statement was recorded in her presence only and the victim had given the history about the incident was taken place at 3:00 p.m., and due to quarrel, husband poured the kerosene and set on fire and her thumb mark was also obtained after recording the same and the same was also videographed and Ex.P.29 - dying declaration is marked and also witness says that when she examined the accused, found burn injuries on his left hand at the juncture of forearm and the wrist and hence, it is very clear that the accused also sustained burn injuries and also issued the wound certificate in terms of Ex.P.30. The evidence of P.W.11 is very clear that if any person pours the kerosene, injuries
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR which have been mentioned could be caused, but she was also smelling kerosene when she examined the victim. In the cross-examination, the suggestion was made that she has administered the pain killer and when the pain killer is administered, normally the patient gets drowsiness and the same is not accepted. However, it is elicited that hairs, lips and feet of the victim were not suffered any burn injuries, but other parts of the body were having burn injuries and also there were number of persons in the casualty and suggestion was made that statement was not recorded in her presence, but witness says that it was recorded and same was reduced into writing, though not endorsed that she was competent and conscious on Ex.P.29, but categorically says that same is mentioned in Ex.P.28, but categorically mentioned in Ex.P.9 itself that in her presence only, same was recorded. It is also the evidence that police themselves have recorded the proceedings of giving statement by the victim in the mobile and twice this witness reiterates that the same was
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR also videographed in the mobile, but during the course of cross examination of this witness, nothing is suggested that dying declaration was not recorded in the mobile. This witness was recalled for further examination and CD/DVD is marked before the Court as MO.1 and at the time of giving statement, the victim was conscious and the same is deposed by the Doctor and in CD - MO.1, it is clearly visible that entire face of the victim was burnt and the victim was in emergency casualty at the time of recording the statement and MO.1 also played before the Court and both defence as well as prosecution counsel were also present and the same was played by using the official laptop with the assistance of the computer staff. This witness again further cross examined, but it is elicited that burn injuries on the victim are more than 90% and also suggested that now the recording shown to him is first time seen by him, but no suggestion was made to this witness that the same was not recorded in the mobile and even not disputed marking of the CD - MO.1 and even not
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR suggested that no such recording was made. There is no any effective cross examination with regard to marking of CD as well as the contents of MO.1.
12. The other witness is P.W.12 who recorded the dying declaration and reiterates that given the requisition and thereafter recorded the dying declaration in terms of Ex.P.29 and also issued the FIR based on the statement and also drawn the mahazar in terms of Ex.P.24 and also taken the accused to the custody, spot mahazar was also conducted in terms of Ex.P.20 and also identifies the MOs and this witness was subjected to cross-examination, but suggestion was made during the course of cross- examination that in view of first aid given to the victim, she was not in a position to give any statement and the same was denied and also categorically admits that the dying declaration-Ex.P.29 got written through W.H.C Smt.Indiramma and also corrections is found and witness says that she only done the said corrections. It is suggested that she was not in a position to make
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR statement and the same was denied. During the course of cross examination of this witness also when the P.W.12 categorically says that she has recorded the dying declaration and also same was videographed through her mobile and this witness not disputed recording of dying declaration in the mobile also and even not disputed the same.
13. Having considered the evidence of P.W.11 and P.W.12, it is very clear that dying declaration was recorded in terms of Ex.P.29 and injured/victim narrated the same. No doubt she has suffered the injury to an extent of 90% and the same is also elicited from the mouth of P.W.11 - Doctor, but when the Doctor certifies and makes an endorsement in Ex.P.28 and also in Ex.P.29 that in her presence only dying declaration was recorded and the same was videographed and videographing of the same was also played before the Court by playing MO.1 with the laptop and all these factors were not disputed by the defence during the course of cross-examination of
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR P.W.11 and P.W.12. When such being the case, when the same is marked, it was not objected and even not disputed during the course of cross-examination, the very contention of the counsel appearing for the appellant that there is no 65B(4) certificate also cannot be accepted.
14. It is important to note that the very witness who recorded the dying declaration comes before the Court and deposes before the Court that she only recorded the same in her mobile and the same is a primary evidence before the Court, but the same is transmitted to the CD P.W.12. When such being the case, when there is no dispute at the time of marking and also during the course of cross examination, not disputed the same, the said contention of the counsel cannot be accepted and hence, the very evidence of P.W.11 and P.W.12 is consistent and reliable and not disputed during the course of cross examination and hence, this Court can rely upon the dying declaration-Ex.P.29.
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15. Now the evidence before the Court is with regard to the witnesses P.W.2 and P.W.3 and this Court already made an observation that P.W.2 and P.W.3 only shifted the injured but they turned hostile and they are won over by the accused. But during the course of cross examination also not disputed when P.W.11 says that these two witnesses P.W.2 and P.W.3 have brought the injured to the hospital and also the fact that no dispute that they are the neighbours of the house of accused and even though they turned hostile and the fact that they won over is very clear considering the evidence of P.W.11.
16. The other evidence is P.W.1 who is the father of the victim and his evidence is also very clear with regard to performing of marriage and came to know about his daughter is no more and when he went to hospital at that time, she was not in a position to make statement and P.W.1 turned hostile. The witnesses P.W.5 and P.W.6 who are the brothers of the deceased and P.W.10 mother of the deceased have also turned hostile.
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17. The defence of the accused is that he was not in the spot and having received the information, he rushed to the house and tried to extinguish the fire and no doubt in the wound certificate which is marked before the Court shows that he had sustained the injuries to his hand. But, the Court has to take note of the very conduct of the accused that when the wife was burning, the very ordinary prudent husband would shift the injured to the hospital, but the accused who is the husband did not shift the injured to the hospital, but, P.W.2 and P.W.3 immediately shifted the injured by securing the Ambulance and Court has to take note of conduct of the accused. The very conduct is very clear that when he has suffered burn injuries, it is very clear that he was very much present at the spot and hence, the very dying declaration of the victim that accused only poured the kerosene and set the fire is very clear and apart from that clothes of accused which have been seized also burnt and the same evidence the fact that he was very much present at the time of the
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR incident. Though he claims that he was outside, not in the spot and also claims that he came to know about the same by information, but who gave the information to him, nothing is stated with regard to the same. When such being the case, it is very clear that he poured the kerosene and burnt his wife. The document Ex.P.1 is very clear that father had lodged the complaint immediately when he came to know about the same, but father also turned hostile. The document Ex.P.20 relied upon by the prosecution as well as the counsel for accused. The prosecution by relying upon the document at Ex.P20 contend that there was no any damage to the door and also nothing is mentioned in Ex.P.20 that the door was damaged and in 313 statement he gives an explanation that he broke open the door and tried to rescue his wife, but no such material is found having considered Ex.P.20 and no doubt in the cross-examination, suggestion was made that he tried to extinguish the fire by breaking open the door and substantiate the same, there is no material
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR before the Court. The accused ought to have explained how his wife has suffered the burn injuries under Section 106 of Evidence Act, but he did not explain the same and his presence was very much there at the spot and even P.W.2 turned hostile, but categorically deposes that both are cordial and while she was going to bring the water, both of them talking each other and the same was witnessed. But in the cross examination of P.W.2, the same is also not disputed by the defence and this evidence also clearly discloses that he was very much present. When all these materials are available before the Court and the same is pointing out the very role of the accused that he was very much present and he only poured the kerosene and set the fire and medical evidence also corroborates the same, particularly the dying declaration is reliable and the evidence of P.W.11 Doctor as well as PSI who recorded the statement of injured is very clear and no doubt the Trial Court convicted the accused for both offences under Section 302 and 304B of IPC. There is no
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR any allegation for subjecting her for cruelty and only victim says at the time of recording her dying declaration that on that day there was a quarrel and he was telling that she will not beget the children and hence, he intend to contact second marriage, but no such allegations are made earlier to this incident and there was no any complaint and with regard to any harassment or dowry demand or acceptance, nothing is there and hence, it is a case of 302 of IPC and not 304B of IPC.
18. Undisputedly, the conviction is solely based on the dying declaration-Ex.P.29. The law with regard to conviction and sole basis of dying declaration has been considered by the Hon'ble Apex Court in the catena of judgments, considering the earlier judgment of Apex Court reported in (2010) 9 Supreme Court Cases 1 in case of Atbir V/s Government of NCT of Delhi, in case of Naeem V/s Uttarpradesh reported in (2024) 17 SCC 735, Suresh V/s State represented by Inspector of Police reported in (2025) 4 SCC 794. The Hon'ble Apex
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR Court in case of Atbir V/s State has laid down factors to be taken into consideration while convicting on the basis of dying declaration wherein the Hon'ble Apex Court in paragraph No.13 and 14 held that " 13. We have carefully considered the rival contentions and perused the relevant materials. Among the various contentions raised by both sides, major part relates to two legal submissions:
a) Admissibility and reliability of the dying declaration made by Sony @ Savita before the investigation officer.
b) Whether death sentence insofar as Atbir and life sentence insofar as Ashok is warranted. (A) Dying declaration
14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by the investigating officer in the presence of a doctor. Since we have already narrated the case of the prosecution which led to three deaths, eliminating the
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analysed that while recording the dying declaration, factors such a mental condition of the maker, alertness of mind and memory, evidentiary value, etc. have to be taken into account. "
19. The dying declaration can be sole basis for the conviction if it inspires the full confidence of the Court and we have satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. We are also satisfied that the dying declaration made by the deceased is true and voluntary and consistent. The Trial Court has rightly convicted the appellant based on the dying declaration and the oral testimony.
20. The Apex Court in several cases also held that dying declaration and its appreciation and whether conviction solely based on dying declaration and while discussing the same it is held in the Judgment reported in
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR (2010) (68) ACC 308 (SC) in case of Jayabalan V/s U.T. of Pondicherry, Bijoy Das V/s State of West Bengal reported in (2008) 4 SCC 511, MuthuKutty V/s State of U.P reported in (2005) 9 SCC 113, Ravi V/s State of Tamilnadu reported in (2004) 10 SCC 776, P.V.Radhakrishna V/s State of Karnataka reported in (2003) 6 SCC 443 held that dying declaration is an important piece of evidence u/s 32(1) of Evidence Act and if a dying declaration is found to be true and voluntary and is not a result of tutoring or prompting or a product of imagination then there is no need for corroboration by any witness and conviction can be recorded on its basis alone.
But in the case on hand, P.W.11 and P.W.12 have categorically deposed that victim made the statement in their presence.
21. Even the Apex Court in the judgment reported in AIR 2017 SC 2161 in case of Mukesh Vs. State for NCT of Delhi & Others, the three judge bench also held, even with regard to the recording of the same by
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR videographing the same, held that it is not mandatory and recording of the same is only a measure of caution and in the absence of videography also, dying declaration would not be fatal to the case of the prosecution and cannot be discarded. But, in the case on hand, P.W.12 has recorded the same in her mobile that too in the presence of P.W.11. Both P.W.11 and P.W.12 reiterated that the same was videographed and not disputed the same during the course of their cross-examination. Thus, the evidence of P.W.11 and P.W.12 is consistent and reliable.
22. In the judgment of the Apex Court in the Larger Bench of Five Judges in the case of Laxman V/s State of Maharashtra reported in (2002) 6 SCC 710, it is held that even presence of Magistrate at the time of recording dying declaration not required and further held that oath to declarant also not required and it is further held that form of dying declaration is also not necessary and even verbal dying declaration can be made and the dying declaration by signs and gestures also could be made and
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR certificate of doctor regarding mental fitness of declarant of dying declaration is also not required.
23. In the judgment of Apex Court reported in AIR 2016 SC 3209 in the case of Raju Devade V/s State of Maharashtra held that mere absence of certificate of Doctor would not render the dying declaration unreliable particularly when the doctor was not present in the hospital at the relevant time.
24. Having taken note of the principles laid down in the judgments referred supra, it is a fit case to rely upon the same that too in a case of sole dying declaration. We therefore, no reason to interfere with the finding of the fact that dying declaration at Ex.P29 is true and free from any effort to induce the decision to make a false statement and dying declaration is coherent and consistent.
25. The counsel appearing for the appellant would contend that this Court has to take note of Section 304B of IPC and also this appellant was in custody during the
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NC: 2026:KHC:10405-DB CRL.A No. 1995 of 2018 HC-KAR course of trial and this Court can invoke 428 of Cr.P.C and give set-off and enlarge the appellant and the said submission cannot be accepted when the Trial Court comes to the conclusion that it is a case of 302 of IPC and also a case of pouring the kerosene and setting the fire on the wife and as a result, she has sustained burn injuries and succumbed to the injuries and question of only considering the offence under Section 304B of IPC cannot be accepted and it is a clear case of Section 302 of IPC. However, Trial Court fails to take note of no material in respect of Section 304B of IPC is concerned and the same requires to be set-aside and imposing of sentence of 10 years also requires to be set-aside and hence, we answer the point accordingly.
26. In view of the discussions made above, we pass the following:
ORDER
i) The Criminal Appeal is allowed in part.
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ii) The judgment of conviction and sentence passed in S.C.No.119/2017 for the offence under Section 304B of Indian Penal Code is set-aside. The judgment of conviction and sentence for the offence under Section 302 of Indian Penal Code is confirmed.
iii) If any fine deposited in respect of offence under Section 304B of IPC ordered to refund the same on proper identification.
Sd/-
(H.P.SANDESH) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE AM,RHS,SN List No.: 2 Sl No.: 1