Venkatesh vs State By Chelloor Rural Police
2021 Latest Caselaw 2078 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF JUNE, 2021

                       PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                         AND

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

            CRIMINAL APPEAL NO.285/2015
BETWEEN

VENKATESH
S/O LATE NARAYANAPPA
AGED ABOUT 23 YEARS
RESIDING AT: RAMOJIPALLI VILLAGE
BAGEPALLI TALUK -563 124
CHICKABALLAPUR DISTRICT.                   ...APPELLANT

(BY SRI Y.R.SADASHIVA REDDY, SR. COUNSEL
FOR SRI DEEPAK .J, ADVOCATE)

AND:

STATE BY CHELLOOR RURAL POLICE
REP. BY S.P.P, HIGH COURT OF KARNATAKA
BANGALORE - 560 001.                  ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
                        ---

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 16.01.2015 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPUR IN S.C.NO.88/2013
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 498A AND 302 OF IPC THE APPELLANT/ACCUSED IS
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SENTENCED TO UNDERGO R.I. FOR 2 YEARS AND PAY FINE
OF RS.2,000/-, IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO FURTHER R.I FOR 4 MONTHS FOR THE OFFENCE
P/U/S 498A OF IPC.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.05.2021, COMING ON FOR
PRONOUNCEMENT    OF    JUDGMENT,   THIS   DAY, V.
SRISHANANDA. J., DELIVERED THE FOLLOWING:


                                JUDGMENT

1. This Criminal Appeal is filed by accused No.1 in

SC No.88/2013 on the file of the Principal District and

Sessions Judge, Chikkaballapur, challenging the validity of

the judgment dated 16.1.2015, whereby he has been

convicted for the offence punishable under Section 498A and

302 of IPC., and ordered to undergo rigorous imprisonment

for a period of two years and rigorous life imprisonment and

ordered to pay fine of Rs.2,000/- with default sentence of

four months simple imprisonment and Rs.10,000/- with

default sentence of one year rigorous imprisonment

respectively.

I. BRIEF FACTS OF THE CASE:

2. Oral complaint lodged by Smt. Ashwini

(deceased) on 26.2.2013 was reduced into writing by the

Assistant Sub-Inspector of Cheloor Police Station and

registered a case in Crime No. 6/2013. In the said

statement, Smt. Ashwini stated that her marriage was

registered in the Sub-Registrar's office on 31.10.2012 and

thereafter, they also got married in Gadadim temple near

Bagepalli on 9.12.2012 in free mass marriage program.

Thereafter, she joined the matrimonial home, where her

husband accused No.1 and his elder sister Radhamma @

Radha @ Aruna (Accused No.2) were residing. It is further

found from the complaint averments that after couple of

months of marriage, at the instigation of the accused No.2,

accused No.1 started demanding gold ornaments and used to

taunt her saying that if he had married some other girl, he

would have got one lakh rupees dowry. It is also found from

the complaint averments that in that regard, accused No.1

had burnt her face with a burning beedi on two or three

occasions. On 25.2.2013, at about 5.30 p.m., accused No.1

at the instance of second accused, abused her stating that

she did not bring the dowry and in order to take away her

life, he took out a blade and assaulted on her left hand and

thereafter, poured kerosene on her and lit the fire. When her

saree got burnt, she raised hue and cry for help and poured

water on her and at that juncture, both accused escaped

from the scene. She sustained burn injuries on chest,

stomach and on hands and legs. The villagers came there

and gave her first aid treatment and intimated the incident to

her parents. Thereafter, she was shifted to Victoria Hospital,

Bengaluru, in an ambulance. After so recording the

statement of the victim and reduced it, into writing, the

Assistant Sub-Inspector had sent words for recording dying

declaration to Tahsildar Yelahanka.

3. Tahsildar visited the Hospital and recorded the

victim's statement (dying declaration). Based on the

statement given by the victim, Assistant Sub-Inspector

returned to Police Station and a case came to be registered

in Crime No.6/2013 initially for the offence punishable under

Section 307 and 498A read with Section 34 of IPC., and FIR

was sent to the jurisdictional Magistrate.

4. Spot mahazar was conducted by the

Investigating Agency. After being treated for about 10 days,

victim was discharged from Victoria Hospital and thereafter

admitted to Chintamani Government Hospital, where she

succumbed to the burn injuries on 17.3.2013. Thereafter,

the Investigating Officer has obtained permission of the

learned Magistrate and invoked Sections 304B and 302 of

IPC in the case and further investigated the matter.

5. On conclusion of the investigation, charge sheet

came to be filed against the accused for the offence

punishable under Section 498A, 302 and 304B read with

Section 34 of IPC.,

6. Presence of the accused was secured before the

Sessions court and charges were framed against the accused

and read over to the accused in the language known to them,

who pleaded not guilty and claimed to be tried.

7. In order to prove the case of the prosecution in

bring home the guilt of the accused, prosecution in all

examined 11 witnesses as PWs.1 to 11 and 15 documents

which were exhibited and marked as Exs.P-1 to P-15.

8. After conclusion of the evidence of the

prosecution, accused statement as contemplated under

Section 313 Cr.PC., was recorded wherein the accused

persons have denied all the incriminatory materials. For

question No.14, accused No.1 has stated that he was not

present at the place of incident and he had been to coolie

work on that day. Accused No.2, while answering question

No.15, has stated that she has no nexus of whatsoever

nature with the incident.

9. Accused persons did not file any written

submission or adduce any evidence on their behalf.

10. Thereafter, learned Sessions Judge heard the

arguments of the accused and the prosecution and perused

the material on record and has convicted the accused No.1

for the offence punishable under Section 498A and 302 of

IPC., while acquitting accused No.1 for the offence

punishable under Section 304B IPC., and Section 4 of Dowry

Prohibition Act and second accused was acquitted of all the

charges. Being aggrieved by the said judgment of conviction

and order of sentence, accused No.1 is before this Court in

the present appeal.

11. We have heard the learned counsel for the

parties.

II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR

THE APPELLANT:

12. Sri Y.R. Sadashivareddy, learned Senior Counsel

appearing on behalf of the appellant has vehemently

contended that the prosecution has failed to establish the

charges levelled against the accused person to any extent

much less beyond all reasonable doubt.

13. He further contended that the place of incident,

nature of the incident, date of death of the victim (whether

homicidal or suicidal) are not at all established by the

prosecution by placing cogent evidence on record.

14. He further contended that there is no Medico

Legal Case (MLC) report sent by the Victoria Hospital out

post Police Station to the jurisdictional Police Station and in

the absence of such report, how the Assistant Sub-Inspector

of Cheloor Police Station visited the Victoria Hospital on

26.2.2013 around 5. P.m., is not forthcoming from the

record, which has been totally ignored by the learned

Sessions Judge while passing the impugned judgment of

conviction. As such, there is a serious doubt as to the

genesis of the crime and there is no material evidence on

record which would establish the case of the prosecution to

any extent much less beyond all reasonable doubt as is

propounded by the prosecution.

15. He also argued that the place of incident have

not been established. He further contended that Ex.P-6 has

no evidentiary value (dying declaration recorded by the

Tahsildar), inasmuch as the same came to be recorded even

before the registration of the FIR. It is his further contention

that in Ex.P-6 there is no mention as to the fact that the

statement given by the victim in telugu language has been

translated into Kannada language inasmuch as doctor PW-7

has admitted in his cross examination that victim has given

the information (statement) in telugu language and there is

no certificate as to mental fitness of victim. Yet another

score on which validity of Ex.P-6 is challenged is that the

same is in printed format and as such, the same is not valid

in view of the principles of law enunciated in the judgment of

the Apex Court in the case of Adevappa Nagappa

Anagolkar Vs. State of Karnataka reported in 1997 SCC

online KAR 60. He further argued that Ex.P-8 cannot be

considered as dying declaration as the same does not contain

the certificate by PW-7 about the mental fitness of the

deceased.

16. He further argued that the prosecution case

suffers for want of substantive evidence in view of the fact

that parents of the victim, who were examined as PWs.3 & 4

Venkataramana and Lakshmidevi, have turned totally hostile

to the case of the prosecution. He also pointed out that

PWs.1 and 2 who are naighbours of the accused have also

turned hostile to the case of the prosecution.

17. It is his further submission that in the absence of

support by the parents and naighbours in regard to the case

of the prosecution, mahazar witnesses to Ex.P-15 spot

mahazar having not been examined by the prosecution,

recording an order of conviction by the learned Sessions

Judge solely on the basis of dying declaration is bad in law

and thus prayed for allowing the appeal.

18. Alternatively, the learned Senior counsel

submitted that in the event of this court maintaining the

conviction of the offence alleged against the accused, be

scaled down from the provisions of Section 302 to Section

304 part II IPC., and suitable sentence may be passed.

19. Learned Senior counsel for the appellant places

reliance on the following judgments in support of his

contentions:

(i) 1999(7) SCC 695 - Paparambaka Rosamma Vs. State of Andhra Pradesh;

(ii) Crl.A. No.758/2010 & Crl.A. No.573/2016 -

Jayamma & another Vs. State of Karnataka;

(iii) Crl.A. No.35/2013 - Naresh Kumar Vs. Kalawati & others.

III. ARGUMENTS ADVANCED BY SRI VIJAYKUMAR MAJAGE, LEARNED ADDL. STATE PUBLIC PROSECUTOR:

20. Per contra, Sri Vijayakumar Majage, learned

Addl. SPP supported the impugned judgment by contending

that mere non intimation to the jurisdictional police through

MLC report by the out post Police Station of Victoria Hospital

is not fatal to the case of the prosecution. He pointed out

that Cheloor Police Station had the information about the

incident. Assistant Sub-Inspector (PW-6) has specifically

deposed before the Court in the examination in chief that as

per the instructions of his higher police officer, he visited the

Victoria Hospital and after confirming the mental fitness of

the victim to give statement, he proceeded to record the

statement of the victim and recorded vide Ex.P-8 which is

perfectly in order.

21. He also argued that there is no bar for requesting

the Tahsildar to proceed with recording of dying declaration

by PW-6 even before the case came to be registered in

pursuance of Ex.P8 in as much as the prime object of

requesting the Tahsildar to record the dying declaration is to

save the precious time having regard to the burn injuries

sustained by the victim.

22. He further argued that mere parents of the victim

and neighbours of the accused turning hostile to the case of

the prosecution, did not cause any serious dent to the case of

the prosecution in as much as it is now well settled principle

of law that wherever the case is based on the dying

declaration and if it inspires confidence in the court, dying

declaration alone can be made basis for passing an order of

conviction. He further argued that the defective investigation

if any should not enure to the benefit of the accused, unless

the accused makes out a case of serious prejudice caused by

such defective investigation.

23. Lastly, he argued that non explanation about the

incident and taking feeble plea of alibi without being

supported by any materials on record, has been properly

considered by the learned Sessions Judge while accepting the

case of the prosecution and thus prayed for dismissal of the

appeal.

IV. POINTS FOR DETERMINATION:

24. In view of the rival contentions urged by the

learned Counsel on behalf for the parties, sole point that

would arise for our consideration is:

"Whether the appellant has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Trial Judge"?

25. We have given our anxious consideration to the

arguments advanced on behalf of the parties and

meticulously perused the entire materials including original

records.

V. EVIDENCE:

26. The gist of the prosecution evidence is that

PWs.1 & 2 are the naighbours/residents of Cheloor village of

accused where the incident has occurred. Both of them have

turned hostile to the case of the prosecution and the cross

examination of these witnesses by learned PP did not yield

any useful materials from the prosecution angle.

27. PWs.3 & 4 are the parents of the victim. They

also did not support the case of the prosecution except

deposing that their daughter died on account of burn injuries.

However, in the cross examination of PW-3 (father of the

victim) defence elicited an answer that his daughter died by

self immolation.

28. PW-5 is the Tahsildar. He deposed that he

visited Victoria Hospital at about 5.30 p.m., at the request of

Assistant Sub-Inspector, Cheloor Police Station and after

confirming that deceased was in 'fit state of mind' he

proceeded to record the statement of the victim. He further

deposed that as per the proforma, he recorded the statement

of the victim in a question and answer form and he recorded

the answers to the questions in his handwriting. He further

deposed in his cross examination, that victim was speaking in

kannada language and he has recorded in verbatim, the

answers given by the victim. He admits that he is not

acquainted with telugu language. He admits that there are

two corrections in respect of answer to question No.8.

29. PW-6 is the Assistant Sub-Inspector of Cheloor

Police Station. He has deposed that at the instructions of

higher officials, on 26.2.2013 he visited Victoria Hospital and

enquired about the mental fitness of victim in writing. He

identified the said request as Ex.P-7 and after confirming

about the mental fitness, he proceeded to record the

statement of the victim. He further deposed that oral

statement of victim is reduced into writing vide Ex.P-8 and

obtained right thumb impression on Ex.P-8. He further

deposed that on 27.2.2007 at the instructions of the

Investigating Officer, he arrested the accused No.1 and

produced him before the Investigating Officer at about 1.00

pm., and gave a report in that regard vide Ex.P-9. In his

cross examination, he admits that he had not seen second

accused or victim earlier to the incident. He has answered

that victim has been shown by doctors at Victoria Hospital

and thereafter he has recorded Ex.P-8. He has answered

that he has issued the requisition to the Tahsildar and the

seal of Sub-Inspector of Police is affixed to the said request

for and on behalf of the Sub-Inspector. He has further

answered that at about 4.30 pm., he had given requisition to

Tahsildar.

30. He has answered that he did not give any report

along with Ex.P8. He admits that before he visited the

Hospital, Station House Officer had necessary information

about the incident. He had narrated the brief facts of the

incident in Ex.P-7. He has specifically answered that the

victim narrated the incident in Kannada language. He denies

that Exs.P-7 and P-8 have been concocted for the purpose of

filing a false case against the accused.

31. PW-7 is the doctor who has made the

endorsement in Ex.P7 about the 'fit state of mind' of the

victim. He has deposed that on 26.2.2013 while he was

discharging the work in emergency ward at about 3.30 p.m.,

PW-6 came there and requested for permission to record the

statement of the victim and so also to furnish the mental

fitness certificate. He further deposed that as per his

request letter Ex.P-7, he visited the burns ward and after

examining her, he gave fitness certificate by endorsing it in

Ex.P--7 vide Ex.P7(b). He further deposed that on the same

day in the evening Yelahanka Tahsildar visited the Hospital

and he also requested for his permission and mental fitness.

After reexamining her, he confirmed the mental fitness of the

victim and permitted the Tahsildar to record the statement.

In his cross examination, he admits that he is not the

treating doctor. He further admits that in Ex.P-8 there is no

mention about the ward or room number of the victim. He

also admits that there is no mention as to the percentage of

burns found on the body of the victim while assessing the

mental fitness. He pleaded ignorance about the furnishing of

MLC report to the out post Police Station.

32. He has answered that there were no relatives of

the victim person at the time of recording Ex.P-8. He

however admits that victim gave statement in telugu

language and there is no endorsement in Ex.P-8 or Ex.P-6

about who translated the statement of the victim. He

answered that she has shown the police the victim he denies

the other suggestions.

33. PW.8 - The Tahsildar who conducted inquest

mahazar vide Ex.P-10. He deposed that on 17.3.2013 at the

request of the Investigating Officer, he conducted inquest

mahazar in the presence of the panch witnesses and

recorded the statements of the blood relatives. He further

deposed that from their statements, he came to know that

victim has been ill-treated by her husband and her sister-in-

law and demanded gold and cash. He also came to know

that burn injuries were sustained by Government on account

of accused persons pouring kerosene and litting fire. In his

cross examination, he admits that the witnesses were

speaking both in Kannada & Telugu and he has not endorsed

that the statements given by them is in Telugu. He also

admits that by the time he visited the Hospital, Post Mortem

examination has not been conducted.

34. PW-9 is the Investigating Officer. He has

deposed that on 26.3.2013, he took further investigation

from PW-6 and after verifying the case records, he conducted

spot mahazar vide Ex.P-15 and prepared a sketch vide Ex.P-

11. He has recorded the statements of available charge

sheet witnesses and collected necessary documentary

evidence on various dates and filed charge sheet against the

accused. In his cross examination, he admits that there was

an MLC report from the Hospital which was forwarded along

with the FIR copy to the court. He admits that the mother

tongue of the victim is telugu language and there is no

endorsement as to who translated the statement of the

victim lady into kannada language.

35. Autopsy surgeon-PW-10 has deposed that on

17.2.2013 at the request of Chintamani Tahsildar, herself

and another doctor conducted Post Mortem examination on

the body of the victim between 1 pm to 3 pm and issued Post

Mortem report vide Ex.P-13. She has deposed that during

the Post Mortem examination she has noticed old burn

injuries with pus formation on both sides of the chest and on

arms both the arms and at back. She has stated that death is

due to septicemia on account of burn injuries. In her cross

examination, she denies the suggestion that if burn injuries

are properly treated, it would not have been resulted in

septicemia. She admits that she is not ignorant about the

line of treatment imparted to the injured.

36. PW-11 is the PSI who conducted part

investigation earlier to PW-9. He deposed that on receipt of

Ex.P-8 he registered a case in Crime No.6/2013 for the

offence punishable under Section 498A and 307 of IPC., and

sent the FIR to the court. He further deposed that on

27.2.2013 he conducted spot mahazar vide Ex.P-5 in the

presence of mahazar witnesses. He identified the seized

kerosene can, match box and a blade before the court which

were marked as MOs.1 to 3.

37. On 4.3.2013, he has sent the seized material

objects for FSL examination. On 17.3.2013, he came to

know about the death of victim and as such, he is sending

request to the mahazar to invoke Sections 302 and 304 and

Section 304 Part II of IPC., and Section 4 of the DP Act and

handed over further investigation to PW-9 on 21.3.2013. He

further admits in his cross examination that he was the

Investigating Officer of the case till Post Mortem examination

was conducted. He admits that he did not record the

statement of the victim. He admits that he did not record

the statement of the doctors who treated her. He admits

that the place of incident is a hatched roof and the same is

mentioned in mahazar Ex.P-15. He admits that he did not

enquire about how long the victim took treatment in

Chintamani Hospital. he admits that he did not collect any

records from Victoria Hospital about her discharge.

38. On careful reappraisal of the entire materials on

record, in the case on hand, the prosecution has placed

strong reliance on the complaint marked at Ex.P-8, which

was the statement given by the victim in the Hospital at 5.00

p.m., on 26.2.2013, based on which, the jurisdictional police

registered a case in Crime No.6/2013 at the inception for the

offence punishable under Section 307 and 498A read with

Section 34 IPC. The dying declaration recorded by the

Tahasildar is at Ex.P-6. In other words, in view of the death

of the injured, Ex.P-8 is also to be considered as dying

declaration apart from Ex.P-6. Thus, two dying declarations

are available on record namely Ex.P-6 recorded by the

Tahasildar and Ex.P-8 recorded by the Assistant Sub-

Inspector of Cheloor Police Station.

39. It is now well settled principle of law and requires

no emphasis that Court can record an order of conviction of

accused solely on the dying declaration, if the dying

declaration inspires confidence of the court. How, in the

given case, the dying declaration is to be appreciated and

whether it can be the sole basis for recording an order of

conviction is no longer res integra. In this regard, gainfully

we rely upon the judgment of the Hon'ble Apex Court in the

case of Purushottam Chopra and another Vs. State

(Government of NCT Delhi) reported in AIR 2020 SC 476,

wherein the Hon'ble Apex Court has issued detailed

guidelines as to how a dying declaration is to be appreciated

in paragraph 21. Same is culled out hereunder for ready

reference:

"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

       ii)         The court should be satisfied that the
                   declarant was in a fit state of mind at the
                   time of making the statement; and that it
                   was a voluntary statement, which was not
                   the     result         of     tutoring,    prompting      or
                   imagination.

       iii)        Where a dying declaration is suspicious or is

suffering from any infirmity such as want of fit state of mind of the declarant or of like

nature, it should not be acted upon without corroborative evidence.

iv) When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and

conscious state of the declarant to make the statement.

viii) If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

40. Even in the case of Jayamma and another Vs.

State of Karnataka relied on by the learned counsel for the

accused, it has been held that dying declaration can be made

as the sole basis for recording an order of conviction

provided if it inspires confidence of the court.

41. In the light of the guidelines issued by the

Hon'ble Apex Court in Purushottam Chopra's case supra,

when Exs.P-6 and -P8 are analysed, it is seen that doctor has

made an endorsement on Ex.P-8 that Ex.P-8 was recorded

before him as Ex.P8(c). In so far as Ex.P-6 is concerned,

there is no separate endorsement made by the doctor. But

the column as to certification of the mental fitness, doctor

has signed at Ex.P-6. Ex.P-6 is in Kannada language, and

the certificate is at Ex.P-6(c), where the doctor has signed

would reveal that dying declaration has been recorded in the

presence of the doctor at 5.30 p.m., to 6.15 p.m., on

26.2.2013. Tahasildar has also certified that at the time of

recording the dying declaration, he has confirmed about the

mental fitness. The Assistant Sub-Inspector who is the

author of Ex.P-8 had issued a letter to doctor vide Ex.P-7

wherein the doctor after examining the health condition of

the victim issued an endorsement which is culled out

hereunder:

"26.02.2013 /3.30.p.m.:-

The patient Aswini, aged 18 years w/o Venkatesh, admitted in burns ward, Victoria Hospital is conscious, allert and oriented to space and time and fit to give statement today at 3.30 p.m. permitted to take statement by ASI, Hydersab of Chelur Police Station.

Sd/- 26.02.13, 3.30 p.m. (Dr.Rajareddy G.V.) Casualty Medical Officer, Victoria Hospital, Bangalore."

42. Further, Dr.Rajareddy G.V. is examined before

the Court as PW-7. Before the Court, he has specifically

deposed that on 26.2.2013, he was discharging his work in

Emergency ward and at the request of PW-6, he examined

the injured Ashwini and after ascertaining about her health

condition and after due assessment, he has given a

certificate marked at Ex.P-7(b) on the request letter issued

by PW-6 marked at Ex.P-7. The said endorsement as

referred to supra clearly and categorically establishes the fit

mental condition of the injured at the time of recording Ex.P-

8 as well as Ex.P-6. It is pertinent to note that Ex.P-8 came

to be recorded by PW-6 at 5.00 p.m., and Ex.P-6 dying

declaration was recorded by the Tahasildar at 5.30 p.m.,

43. Further, there is no discrepancy between the

contents of Ex.P-6 and Ex.P-8. Ex.P-8 is the basis on which

the jurisdictional police registered a case against the

accused. The contents of Ex.P-6 tallies with the contents of

Ex.P-8. No doubt, learned Senior Counsel Sri Y.R.

Sadashivareddy, representing the appellant drew the

attention of the cross examination of the doctor wherein, he

has stated that victim was speaking in telugu language.

However, the author of Ex.P-8 and Ex.P-6 Assistant Sub-

Inspector and Doctor respectively, have specifically deposed

before the Court that the injured was narrating the incident

in kannada language. Therefore, the arguments putforth on

behalf of the accused that victim did not know kannada

language and there is no endorsement as to who translated

the narration made by the victim from telugu language to

kannada language, looses its significance.

44. Further, for not issuing the endorsement as to

the mental fitness on the top of Ex.P-6 dying declaration is

also not fatal to the case of the prosecution inasmuch as the

doctor has issued an endorsement on Ex.P-7 to PW-6

Assistant Sub-Inspector vide Ex.P-7(b), wherein he had

examined the injured and after ascertaining and assessing

the mental fitness of the injured, to give statement to PW-6,

he has permitted PW-6 to record the statement. The time

gap between Ex.P-6 and P-8 is only 30 minutes. As such,

the court cannot presume that at the time of recording Ex.P-

6 by Tahasildar mental condition of victim was so

deteriorated that she was not in a fit condition to give

statement to the Tahasildar. Mere non mentioning of the

mental fitness on the top of Ex.P-6 by the Tahasildar or the

doctor, by a separate endorsement thus can be treated as an

irregularity and same would not efface the genuineness of

the dying declarations.

45. Further, no explanation of whatsoever is

forthcoming from the accused as to the incident. He has not

cared to shift the injured to the Hospital and after the

incident, according to the version of the injured, he ran away

from the spot. While recording accused statement under

Section 313 Cr.P.C., to question No.15, he has answered

that he had been to coolie work and he was not present at

the time of incident. In other words he had taken the plea of

alibi. But failed to lead any evidence in that regard. Even

after he came to know about the incident, he did not care to

visit the injured in the Hospital. The said conduct of the

accused in not visiting the injured in the Victoria Hospital or

at Chintamani Hospital is un-natural and not explained by the

accused person. They having led a happy married life, what

made the deceased to falsely implicate the accused in the

case is again a circumstance which is not explained by the

accused either at the time of recording the statement of

accused or by filing his written version about the incident.

46. In such circumstances, the Trial Court based on

the materials available on record, believing the prosecution

case, found that accused is guilty of the offences alleged

against him. The said view of the Trial Court was justified in

view of the judgment of the Hon'ble Apex Court in the case

of Prahlad Vs. State of Rajasthan reported in (2019) 14

SCC 438. Relevant paragraph No.11 in the said decision is

culled out hereunder:

"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

Therefore, the finding recorded by the Trial Judge that

accused is guilty of the offences alleged against him cannot

be interfered with.

47. In so far as Paparambaka Rosamma's case

relied upon by the counsel for the appellant is concerned, the

principles of law laid down in the said case has been held to

be not good law by the Hon'ble Apex Court in the case of

Laxman Vs. State of Maharashtra reported in (2002) 6

SCC 710:AIR 2002 SC 2973. The judgment of Surinder

Kumar Vs. State of Haryana reported in (2011) 10 SCC

173 was considered by the Hon'ble Apex Court in

Jayamma's case again relied on by the counsel for defence.

48. In paragraph 16 of Jayamma's, case relied upon

by the counsel for the appellant supra, the Hon'ble Apex

Court has noted as under:

"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 percent 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."

49. In the case of Jayamma relied on by the

Appellant, it is found that there are 80% burns on the body

of the injured whereas in the case on hand, the injured

sustained only 45% of burn injuries and have survived from

25.2.2013 to and according to doctor she was in a fit mental

condition. Further, no sedatives were administered to the

injured in the case on hand. Therefore, on facts, the

judgment of the Hon'ble Apex Court in the case of Jayamma

can be respectfully distinguished on facts even though there

cannot be any dispute as to the principles of law laid down in

the said judgment. As such, from the above discussion, it is

crystal clear that the finding recorded by the learned

Sessions Judge that Exs.P-6 and P-8 would sufficiently

establish the guilt of the accused is based on sound reasons

and logic and as such, does not suffer from any legal

infirmity or perversity even after re-appreciation of the entire

materials on record. In view of the foregoing discussion, this

court is of the considered opinion that no grounds are made

out on behalf of the appellant much less good grounds to

interfere with the finding recorded by the Trial Court.

50. In the case on hand, the victim was not

administered with any sedatives and there is no evidence on

record in this regard. Further, the incident has occurred on

25.02.2013 and ultimately, the victim succumbed to the

injuries on 16.3.2013 at Chintamani Hospital. Further, the

burns found on the dead body of the injured was only to the

extent of 45% and not 95-97% as in the case of Surinder

Kumar's case. Therefore, the judgment rendered in Surinder

Kumar's case relied on by the Appellant is of no avail in

accepting the contentions urged on behalf of the Appellant.

51. The judgment of this court in the case of

Adevappa Nagappa Anagolkar Vs. State of Karnataka, supra,

relied on by the counsel for defence is also of no much use in

accepting the contention in as much as there was no

evidence on record to indicate the state of mind of the maker

of the dying declaration. On facts, the present case can be

differentiated. Moreover in view of the principles of law

enunciated in the State of Madhya Pradesh Vs. Dal Singh

and Others reported in (2013) 14 SCC 159. The said

decision is of no assistance to defence.

52. For the reasons stated supra, the point raised in

the present appeal is answered in the negative holding that

the appellant has not made out any case whatsoever to

interfere with the impugned judgment of conviction and order

of sentence by the trial Court.

53. In view of the above, we pass the following:

ORDER

(i) Appeal is dismissed.

(ii) The judgment and order of conviction dated 16.01.2015 passed in SC No.88/2013 is hereby confirmed.

(iii) Send back the Trial Court records forthwith, with a copy of this order.

Sd/-

JUDGE

Sd/-

JUDGE

PL*