Sri. Kadajjara Murthappa vs State By Psi Holalkere
2021 Latest Caselaw 5616 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF DECEMBER, 2021

                           PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                                AND

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

            CRIMINAL APPEAL NO.780 OF 2016

BETWEEN:

Sri Kadajjara Murthappa
S/o Kadajjara Chandrappa
Now aged 30 years
Occupation: Coolie
R/o Nagaragatta village
Holalkere Taluk
Chitradurga-577501.
                                                     ...Appellant
(By Sri Sundar Raj, Advocate)

AND:

State by PSI Holalkere
Police Station
Represented by Public Prosecutor
High Court of Karnataka Building
Bengaluru-560 001.
                                                   ...Respondent
(by Sri Vijayakumar Majage, Additional State Public Prosecutor)

     This Criminal Appeal is filed under Section 374 (2) of the
Code of Criminal Procedure, praying to set aside the judgment
                                 2


and order dated 25.04.2015 and sentence dated 29th April, 2015
passed by the Additional District and Sessions Judge,
Chitradurga,   in  SC    No.47   of  2014    convicting    the
appellant/accused for the offence P/U/S 302 of Indian Penal
Code.

       This appeal coming on for hearing, this day, G. NARENDAR
J., delivered the following:

                        JUDGMENT

The appellant is before this court being aggrieved by the

Judgment of conviction dated 25th April, 2015 and Order of

sentence dated 29th April, 2015, whereby the Court of Additional

District and Sessions Judge in SC No. 47 of 2004, was pleased to

render a judgment convicting and sentencing the accused to

undergo imprisonment for his lifetime. No fine was imposed, as

the trial Court has concluded that the accused does not hold or

own any properties either movable or immovable. Being

aggrieved by the Judgment of conviction dated 25th April 2015

and Order of sentence rendered dated 29th April 2015 in SC

No.47 of 2014, the appellant is before this Court.

2. The gist of the prosecution case is as follows:

That the deceased, who was aged about 30 years at the

time of the incident and the accused who was aged about 28

years, knew each other for the past fifteen years. That as per

the father of the deceased who has been examined as PW4, his

deceased daughter was in relationship with the accused. That

the deceased was given in marriage to one Shivanna his brother-

in-law i.e. the younger brother of his wife and that she was

married to the said Shivanna as a second wife even during the

subsistence of the first marriage and when the first wife was

very much alive; that the deceased had mothered a son and a

daughter. That several months prior to the date of the incident,

the accused had also got married. Despite the marriage, he

used to visit deceased in her petty shop, which she was running

in her residential premises itself; that she had separated from

her husband, the said Shivanna, several years ago; that she was

leaving separately; that the house of her parents was about 25

feet away and that the parents and her brother were residing

together in the said house. That on the eventful day, i.e. on 30th

January, 2014 at about 10.30 pm, when the deceased was in her

shop and was attempting to fill kerosene to the container

attached to the lamp, the accused had visited the shop and that

there was altercation as the deceased is said to have

admonished the accused for visiting her even after his marriage

and that the accused, angered by the same, is said to have

snatched the kerosene can from her hands, doused kerosene on

her and lit fire to her and when she started screaming unable to

bear the pain, the accused is said to have fled the spot and that

the fire was extinguished by her father and brothers and

thereafter took her to the Government Hospital at Chitradurga

and she was admitted to the Burns Ward therein.

3. It is stated by PW4, the father, that when they were

shifting his daughter to the hospital, the deceased is alleged to

have informed PW4 that it is the accused who doused her with

kerosene and set fire on her; that the Doctors in the hospital

conveyed the registration of Medico Legal Case to the

jurisdictional police. That on receipt of the intimation of

registration of MLC, the same was collected by PW11-Head

Constable No.167 of Holalkere Police Station and after collecting

the MLC slip, is said to have visited the deceased in the burns

ward at about 11.00 am and that in the presence of PW10, who

is the relative of the deceased and native of the same village,

PW11 is said to have videographed the statement by the

deceased on his mobile phone and thereafter he reached the

Police Station at 1.00 pm and handed over the same to PW12-

Police Sub-Inspector and the then Station House Officer. That

the statement of the deceased was recorded on the next date of

the incident i.e. on 31st January, 2014. The statement of

deceased-Kariyamma is marked as Exhibit P14. On the basis of

the said statement, PW12 is said to have registered the case as

Crime No.37 of 2014 against the accused, First Information

Report (Exhibit P16) was forwarded to the jurisdictional Court;

that thereafter, the Station House Officer addressed a letter to

PW1-Tahsildar requesting him for recording of the dying

declaration of the deceased. That the alleged dying declaration

is said to have been recorded by the Tahsildar and is produced

as Exhibit P3. That PW12 visited the place of incident in the

presence of PW2 and CW3, inspected the same and conducted

mahazar and the mahazar is produced as Exhibit P4, seized a

can, a matchbox and one set of chappal which are marked as

MO1 to MO3.

4. That on receipt of the requisition, it is stated, that PW1-

Tahsildar is said to have visited the District Hospital and is said

to have personally enquired with the Doctor with regard to the

fitness of the deceased to make a statement and that the Doctor

had orally communicated to PW1 that the deceased was in a fit

state of mind and health to make a statement. The said

statement given to PW1-Tahsildar (hereinabove mentioned),

has been marked as Exhibit P3. That on 04th February, 2014 at

8.30 pm PW12 received an e-mail (Exhibit P20) whereby, the

police were intimated about the demise of the victim. On the

basis of the said e-mail, PW12 altered the case registered for

offence punishable under Section 323 and 307 of the Indian

Penal Code to the one under Section 302 of Indian Penal Code.

That the inquest was conducted the in mortuary on 04th

February, 2014 at 11.30 am and PW3-Halappa, CW5-Shivanna,

CW6-Shivagangamma and PW12 have drawn up the inquest

mahazar as per Exhibit P8. After recording the statement of

PW4, PW6, CW8 and CW10, the accused was arrested on 05th

February, 2014; that the accused has remained in custody from

the date of his arrest and as a prisoner from the date of

judgment.

5. The trial Court, after appreciating the material on

record, more particularly the alleged dying declaration said to

have been drawn up by PW1 with the assistance of his Office

Assistant and after placing reliance on Exhibit P14-the alleged

statement said to have been made to PW11 and the oral

evidence of PW1, PW10, PW11 and PW12 and Exhibits P1 to P3,

P14, P15 and P18, has concluded that the prosecution has

proved beyond reasonable doubt that the deceased and accused

were in relationship and that being angered by the advise of the

deceased and with an intention of finishing her off, has taken

advantage of the situation by snatching the kerosene can and

dousing kerosene on her and setting fire to the deceased and

thereby caused burn injuries as a result of which the victim

succumbed to the burn injuries on 04th February, 2014 at 7.30

am. The trial Court has placed reliance on Exhibit P9

postmortem report and the deposition of PW5 to conclude that

the death of the victim is a homicidal death.

6. The learned counsel for the appellant would contend

that the alleged dying declaration is inadmissible and is tainted

and is drawn up in a manner not sanctioned by law. He would

invite the attention of the Court to the deposition of PW1 and

would point out from the testimony that it is the case of PW1

that the alleged dying declaration has not been written down by

him and that it has been written down by his office assistant. He

would further submit that law mandates that the person

recording the dying declaration has to be recorded it in the

manner of question and answer and that it should be recorded

by the witness himself and he further submits that it is

impermissible for a stranger to record the same on behalf of the

Executive Magistrate. He would submit that the procedure

adopted by the Executive Magistrate is unheard of more so when

the said office assistant, who it is alleged had recorded the

declaration by the deceased, has not been examined at all.

7. Proceeding further, he would submit that this is a case

where there are no ocular witnesses and that the case of the

prosecution is entirely based on the alleged dying declaration.

He would contend that the alleged statement Exhibit P14 said to

have been recorded by PW11, is unbelievable. He would submit

that even as per the testimony of PW11, he had recorded the

statement/alleged dying declaration on his mobile phone and in

this regard he would invite the attention of the Court to the

material objects marked in the case and would submit that the

neither the hard disk of the mobile phone nor the mobile phone

have been marked before the Court during the trial. He would

submit that the mere say of the witness cannot take a place of

proof that too when it is not carried out in the manner known to

law and that the statement is nothing but a concoction in order

to get over the lacunae in Exhibit P3, i.e., the alleged dying

declaration said to have been recorded by the Executive

Magistrate. Elaborating further on the said point he would

submit that Exhibit P3 is not countersigned by the Doctor and

there is no statement by the Doctor who has attested as to

fitness of state of mind of the victim to make a statement.

Taking us further, he would contend that it is common

knowledge that the burn victims are given palliative care and

that palliative care involves administering the pain killers and

such pain killers would mitigate the pain and will have the effect

of numbing the patient and that such medicine is to reduce the

suffering of the burns victim who would be in excessive pain.

8. Further, the learned counsel for the appellant would

vehemently contend that there is absolutely no material to

demonstrate any motive against the accused. He would submit

that motive assumes significance in respect of a case where

there are no ocular evidence. He would conduct that even as

per the alleged dying declaration and even as per the deceased,

the deceased and the accused were in relationship for nearly

fifteen years and that if the said fact is viewed in the background

of the age of the victim and the accused, it would demonstrate

that the accused and the deceased were known to each other

since they were teens. He would further contend that as per the

prosecution case, even the marriages to different partners has

not deterred them from continuing their relationship and that if

the entire incident is viewed in this background, it would clearly

demonstrate that the theory put forth by the prosecution is mere

a concoction and is made with an intention of shielding the guilty

and that the appellant is a victim of circumstances. He would

submit that the prosecution has not even placed an iota of

material to demonstrate any motive on the part of the accused

to do away with the life of deceased.

9. Drawing further strength from the statement of the

deceased, the learned counsel for the appellant would submit

that what has been detailed by the deceased is, at the most,

could be described as a disagreement and that even as per the

deceased, the accused had not stopped visiting her or caring for

her even after his marriage as was the case with the deceased

and that the said fact alone is sufficient to demonstrate the

absence of any motive on the part of the accused to do away

with the life of the deceased and to demolish the prosecution

theory of an attempt to murder or do away with the life of the

deceased by the accused.

10. Per contra, the learned Additional State Public

Prosecutor would submit that Exhibit P4 is countersigned by

PW10 which statement has been taken down in the presence of

PW10 and it is also countersigned by PW11, the Head Constable.

The learned Additional State Public Prosecutor would vehemently

contend that the absence of certification from the Doctor would

not dent the evidentiary value of Exhibit P3 and he would submit

that the sanctity of the said statement has been examined in the

light of the fact that the same has been drawn up by an impartial

and uninterested witness, i.e. the Executive Magistrate and that

the Executive Magistrate has no stake nor does he have any bias

or prejudice against the accused and that the statement is also

supported by the testimony of PW1 who has stated that the

treating Doctor has orally communicated to him regarding the fit

state of mind of the deceased to make a statement. He would

fairly admit that even as per the said statement of the deceased,

it would demonstrate an altercation, admonishment act on the

part of the deceased and the accused getting enraged by the

admonishment or rejection. He would contend that the accused

cannot be permitted to go scot-free, as the deceased has clearly

declared that the accused has snatched kerosene can, doused

her with kerosene and lit fire on her with the sole intention of

doing away with her life and hence he would submit that the

Judgment of conviction and Order of sentence passed by the trial

Court sentencing to undergo imprisonment for life, does not

warrant any interference.

11. We have heard the learned counsel appearing for the

parties in extenso and we have given our anxious consideration

to the contentions, various testimonies and material on record.

The law with regard to recording of dying declaration is well-

settled. The Hon'ble Apex Court in a catena of decisions held

that it is not mandatory that dying declaration should be

recorded by an Executive Magistrate or an independent person

only. That the recording of dying declaration by an independent

witness or by a person occupying a superior post of Executive

Magistrate, would only help in advancing the impartial nature of

the witnesses and that the dying declaration, if not free of

embellishments, requires to be corroborated by the material on

record. The Hon'ble Apex Court in the case of LAXMAN v. STATE

OF MAHARASHTRA (Paragraph 3 of 2002 Crl.J 4095), has held as

under:

"3.The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the

doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

12. A three Judges Bench of the Hon'ble Apex Court in

the case of JAYAMMA AND ANOTHER v. STATE OF KARNATAKA

reported in (2021)6 SCC 213, while appreciating the aspect of

dying declaration, has been pleased to observe and hold in

paragraphs 14, 15, 16, 17 and paragraphs 22 and 23 as under:

"14. Before we advert to the actual admissibility and credibility of the dying declaration (Ext. 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.

14.1. In P.V. Radhakrishna v. State of Karnataka, 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 burns, part of the body affected, impact of burns on the faculties to think and other relevant factor.

14.2. In Chacko v. State of Kerala, 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 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.

14.3. In Sham Shankar Kankaria v. State of Maharashtra, it was restated 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 Gujarat wherein this Court (at SCC pp. 480-81, para 18) summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria reiterated: (Sham Shankar Kankaria, SCC pp. 172-73, para 11)

"11. ... (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.);

(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 and Ramawati Devi v. State of Bihar .);

(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.);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.);

(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.);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.);

(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.);

(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.);

(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.);

(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.);

(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.)"

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 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 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 Surinder Kumar. 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% 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 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 Sampat Babso Kale v. State of Maharashtra. The dying declaration in that case was made by a victim who had suffered 98% 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: (SCC p. 744, para 14)

"14. ... 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)

22. Having meditated over the issue to the extent it is possible, and on a minute examination of the original document Ext. 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 on the basis of the said document along with its corroboration by PW 11 and PW 16. We say so for several reasons as summarised hereinafter:

22.1. 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 the 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.

22.2. 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.

22.3. 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.

22.4. 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 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.

22.5. 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.

22.6. 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 1 and the accused were insisting on payment of Rs 4000 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.

22.7. The Seventh reason to dissuade us from harping upon Ext. 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.

22.8. The Eighth reason which makes us reluctant to accept the contents of purported dying declaration (Ext. P-5), is the fact that victim, Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22-9-1998. She succumbed to her burn injuries after almost 30 hours later at 5.30 a.m. on 23-9-1998. 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 (Ext. 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 prerequisites, 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 reappreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

13. We have examined Exhibit P3-the alleged dying

declaration said to have been recorded by PW1. Admittedly, the

dying declaration does not carry a certificate by the Doctor

certifying the mental condition and fitness of the burn victim to

make a statement narrating the incident. It is needless to state

that it is a sine qua non that the certification by the Doctor

certifying the mental condition rather the mental fitness of a

burn victim, who is on the verge of dying, to make an impartial

statement. In the absence of such certification certifying the

fitness of the victim to make a statement, in our opinion and in

the light of the law laid down by the Hon'ble Apex Court, the said

statement cannot be appreciated as the dying declaration. That

apart, we have examined the testimony of PW1 who is an

Executive Magistrate. The witness has admitted that the

statement was written down by his Assistant. The person who

wrote down the statement has been identified by PW1 as his

Office Assistant. Neither the name of the person who wrote

down the statement is forthcoming nor has the said person has

been examined to corroborate the truthfulness of the claim of

PW1. In that view of the matter, the testimony of PW-1 cannot

be construed to be conclusive to prove the alleged offence.

13. Coming now to the alleged Exhibit P14, the statement

said is to have been recorded by PW11. It is alleged that it is

countersigned by PW10 regarding the fitness of the deceased to

make a statement. The same requires to be taken with a pinch

of salt. The case of the prosecution is that the statement was

recorded by PW11 on his mobile phone. As rightly contended by

the learned counsel appearing for the appellant, neither the

mobile phone nor the hard disk of the phone has been placed

before the Court to corroborate the said statement. Admittedly,

PW11 works directly under the instruction of PW12-Station

House Officer and PW13-the Investigating Officer and it cannot

be said with any sense of authority that PW11 is an uninterested

party. If the case of PW11 and Prosecution is that the statement

was recorded on a mobile phone by way of videographing, the

prosecution was required to place the same to corroborate the

statement produced and marked as Exhibit P15. The learned

Additional State Public Prosecutor, would counter the same and

would contend that though the statement was videographed by

PW11 on a mobile phone but the mobile phone nor the hard disk

of the mobile phone has been produced, but a copy of the same

has been downloaded and transferred to a Compact Disc and the

contents have been reduced to writing. He further clarified that,

apart from videographing and downloading the same to a

compact disc, PW11 has independently recorded the statement.

In our opinion, the said contention of the learned Additional

State Public Prosecutor cannot be appreciated. Nothing

prevented PW11 from requesting the Doctor to certify the

request and thereafter to record the statement and further

obtain the certification of the statement by the Doctor. PW11 is

a trained Police Constable and such procedures are not alien to

him. That apart, he has admitted before the trial Court that he

submitted Exhibit P3 the alleged declaration to the Executive

Magistrate and Exhibit P14 the alleged statement to PW11. Even

by a cursory look and to the naked eye, the Left thumb marks on

Exhibit P3 and P14 are not similar. This has also been pointed

out to the learned Additional State Public Prosecutor. Even on

this count, we are not inclined to attach much weightage to the

alleged dying declaration.

14. Be that as it may, the witnesses spoke about the

presence of the accused and the PW4-father of the deceased has

spoken about he seeing the accused running away from the

house of the deceased. This portion of the evidence has not

been impeached. That apart, he has also spoken about the

relationship between his daughter-deceased and the accused.

The witnesses have spoken with regard to the nature of

relationship between the deceased and accused. This aspect of

the matter has not been denied by the accused. There is no

suggestion on the part of the accused that the deceased was an

alien or she is not having acquaintance with the accused. That

apart, even if the non-incriminating part of the alleged

statement of the deceased, i.e. with regard to the relationship

and her admonishment of the accused is taken into

consideration, then the incident can best be described as one

which would squarely fall within the parameters of Section 304

Part-II of the Indian Penal Code. In our considered opinion, the

trial Court has erred in not appreciating the embellishments in

the testimonies of Exhibits P1 and P11. The trial Court has not

attached much evidentiary value to the statement of PW10. Be

that as it may, even if we consider the case of the prosecution in

the background as stated by the deceased, at best it can be

concluded that being angered by the altercation and

admonishment of the deceased, the accused proceeded to

snatch the kerosene can, poured kerosene on the deceased and

set fire on her. If this is viewed in the background of the fact

that the accused had no motive to do away with the life of the

deceased, more so in the background of the fact that the

accused was a regular visitor to the shop of the deceased and

also in the light of the fact that the accused had not come with

preparation and there being no evidence to demonstrate that the

accused had come to the shop of the deceased well-prepared to

commit murder of the deceased. Though it is the categorical

case of the prosecution that the kerosene can was available

because the deceased was attempting to refill the container

attached to the lamp, we find that neither the lamp nor the

container attached to the lamp are marked in the trial. This is

one other lacunae apart from failure of placing on record the

alleged mobile phone or hard disk belonging to PW11, which in

our opinion, has against the case of the prosecution.

15. We are of the considered opinion that the case of the

accused ought to be considered as one of culpable homicide not

amounting to murder and in that view of the matter, we are of

the considered opinion that the impugned Judgment of

conviction and Order of sentence warrants interference.

Accordingly, the Judgment of conviction dated 25th April, 2015

and Order of sentence dated 29th April, 2015 and the sentence

imposed by the trial Court under Section 302 of the Indian Penal

Code convicting the appellant to undergo life imprisonment, is

set aside. The conviction is altered to one under Section 304

Part-II of Indian Penal Code keeping in mind the nature of the

act alleged against the accused and also in view of the fact that

there has been no allegation of preparation or motive to commit

the murder of the deceased.

16. We are of the considered opinion that the period of

seven year, ten month and two days undergone as on today by

the appellant, be imposed as a punishment for the offence

punishable under Section 304 Part-II of the Indian Penal Code.

17. In that view of the matter, the sentence of the trial

Court, sentencing the accused to undergo imprisonment for life

is set aside and the period of seven year, ten month and two

days undergone by the appellant is imposed as punishment. The

appellant having been acquitted of the offence punishable under

Section 302 and pursuant to modifying the sentence, is directed

to be released from jail forthwith, if not required in any other

case.

18. In the result, we pass the following:

ORDER

1. Appeal is allowed-in-part.

2. The judgment of conviction dated 25th April, 2015 and Order of sentence dated 29th April, 2015 passed in S.C.No.47 of 2014 on the file of the Additional District and Sessions Judge, Chitradurga convicting the accused for the offence punishable under Section 302 of Indian Penal Code is hereby set aside;

3. The judgment of conviction and order of sentence dated 29th April, 2015 convicting the accused for the offence punishable under Section 302 of Indian Penal Code is modified and sentenced under Section 304 Part-II of the Indian Penal Code;

4. The custody period already of seven year ten month and two days already undergone by the accused till date is treated as period of imprisonment.

3. Accused is directed to be set at liberty and be released from jail, if not required in any other case.

Sd/-

JUDGE

Sd/-

JUDGE

lnn