State Of Karnataka vs Santosh Basayya Yenagimath
2022 Latest Caselaw 3270 Kant

          IN THE HIGH COURT OF KARNATAKA,

                      DHARWAD BENCH

    DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                           PRESENT

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

                              AND

        THE HON'BLE Mr. JUSTICE S. RACHAIAH

         CRIMINAL APPEAL No.100358 OF 2017

BETWEEN:

State of Karnataka,
Represented by the
Police Sub-Inspector,
Murugod Police Station,
Belagavi District
Through the Additional
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka, Dharwad Bench.
                                              .. Appellant
(By Sri. V.M. Banakar, Additional State Public Prosecutor)

AND:

Santosh Basayya
Yenagimath, Age: 28 years,
Occ: RMP Doctor, R/o. Hirekoppa,
Now residing at Yaragatti
Tq: Saundatti, Dist: Belagavi.
                                            .. Respondent
(By Sri. Avinash M. Angadi, for
Sri. Santosh B. Malagoudar, Advocate )
                                               Crl.A.No.100358/2017
                             2




                              ***
      This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
to appeal against the judgment and order of acquittal dated
21-04-2017 passed by the learned Principal Sessions Judge,
Belagavi in Sessions Case No.75/2015; to set aside the judgment
and order of acquittal dated 21-04-2017 passed by the learned
Principal Sessions Judge, Belagavi in Sessions Case No.75/2015
and convict the respondent/accused for the offences punishable
under Sections 302 and 504 of the IPC, in the interest of justice
and equity.

      This Criminal Appeal having been heard and reserved on
02-02-2022, coming on for pronouncement of judgment this
day, Dr.H.B. Prabhakara Sastry J. delivered the following:

                        JUDGMENT

The present respondent/accused was tried by the Court of

the learned Principal Sessions Judge, Belagavi, at: Belagavi

(henceforth for brevity referred to as "the Sessions Judge's

Court") in Sessions Case No.75/2015, for the offences punishable

under Sections 302 and 504 of the Indian Penal Code, 1860

(hereinafter for brevity referred to as "the IPC") and the said

Sessions Judge's Court, by its judgment dated 21-04-2017,

acquitted the accused of the offences charged against him. It is

against the said judgment of acquittal, the complainant -State

has preferred this appeal.

2. The summary of the case of the prosecution is that,

the deceased Ms.Naushad, D/o. Rajesab Gokak, was in live-in Crl.A.No.100358/2017

relationship with the accused and they were living together in a

rented house bearing House No.340/9/2 of Yaragatti, within the

limits of complainant Police Station. They had sexual

relationship also between them. The accused often used to tease

her by calling her as his mistress. He developed suspicion about

the character and fidelity of Ms. Naushad. That being the case,

on 07-09-2014, at about 9:30 p.m., in their house at Yaragatti,

while the deceased Naushad was at home cooking food, the

accused came home in a drunken condition and started

quarrelling with her and started abusing her and complaining

that, she has kept sexual relationship with others and that he is

going to finish her off then and there itself. Stating so, with an

intention to do away with her life, the accused took the kerosene

Can found there and poured kerosene on her and lit fire to it with

a match stick. Due to fire, the deceased Naushad sustained

several burn injuries. She was initially shifted by the neighbours

after dousing the fire, to the Community Health Centre at

Yaragatti and from there to the District Hospital at Belagavi,

where, on 14-09-2014, while under treatment, she succumbed to

the injuries sustained.

Crl.A.No.100358/2017

3. The respondent/accused was charge sheeted for the

offences punishable under Sections 302 and 504 of the IPC.

Since the accused pleaded not guilty, charges were framed

against him for the said offences.

4. In order to prove the alleged guilt against the accused,

the prosecution got examined in all nineteen (19) witnesses as

PW-1 to PW-19 and got marked documents from Exs.P-1 to P-40

and Material Objects at MO-1 to MO-4. From the accused's side,

neither any witness was examined nor any documents were

marked as exhibits. After hearing both side, the learned

Sessions Judge's Court, by its judgment dated 21-04-2017,

acquitted the accused of the offences punishable under Sections

302 and 504 of the IPC. Challenging the same, the prosecution

has preferred the present appeal.

5. The respondent/accused is being represented by his

learned counsel.

6. The Sessions Judge's Court's records were called for

and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court including the memorandum of Crl.A.No.100358/2017

appeal, impugned judgment and the Sessions Judge's Court's

records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the learned

Sessions Judge's Court.

9. After hearing both side, the points that arise for our

consideration in this appeal are:

i] Whether the prosecution has proved beyond all reasonable doubts that, on 07-09-2014, at about 9:30 p.m., in a rented house bearing No.340/9/2 of Yaragatti, within the limits of complainant Police Station, the accused abused the deceased Naushad in filthy language and accused her of maintaining illicit relationship with others and threatened of finishing her then and there itself and thus has committed the offence punishable under Section 504 of the Indian Penal Code, 1860?

ii] Whether the prosecution has proved beyond all reasonable doubts that, on the above said date, time and place, in continuation of his act, the accused, with an intention to do away with the life of the deceased Naushad, poured kerosene upon her and put fire to it by litting a match stick, due to which fire, deceased Naushad sustained burns, which resulted in her death on 14-09-2014 at 5:00 p.m. in the District Hospital at Belgaum and thereby the accused has committed an Crl.A.No.100358/2017

offence punishable under Section 302 of the Indian Penal Code, 1860?

iii] Whether the judgment of acquittal under appeal deserves any interference at the hands of this Court?

10. According to the prosecution, though the alleged

incident of putting fire to the deceased by the accused took place

on 07-09-2014 at about 9:30 p.m., in their house at Yaragatti,

and that the injured was said to have been shifted to Community

Health Centre at Yaragatti by the neighbours on the same night,

however, a complaint came to be registered only on the next day

i.e. on 08-09-2014 at 2:15 p.m., after PW-6 - Assistant Sub-

Inspector of Police, Murgod Police Station is said to have

recorded the statement of the injured in the District Hospital at

Belagavi and registered it in their Station Crime No.284/2014

against the accused for the offences punishable under Sections

307 and 504 of the IPC. After the death of the deceased due to

burns, Section 302 of the IPC came to be incorporated in the

crime, in place of Section 307 of the IPC.

11. In order to prove the alleged guilt against the

accused, though the prosecution examined an all nineteen (19) Crl.A.No.100358/2017

witnesses from PW-1 to PW-19, but it is only PW-6, PW-13,

PW-14, PW-15 and the Investigating Officer, who are shown to

have supported the case of the prosecution. Among them, PW-1

and PW-2 were projected as the neighbours of the deceased

Naushad and PW-3, PW-4 and PW-5 were projected as the

residents of the same village. However, it was also the case of

the prosecution that all these witnesses have gone to the house

of the deceased on the night of the alleged incident and put off

the fire found on the body of the deceased and shifted her to the

Hospital. However, none of these witnesses have supported the

case of the prosecution. PW-1 stated that, he knows the

deceased Naushad, but does not know the accused. However,

PW-2, who is the wife of PW-1, has stated that she knows both

the accused and the deceased Naushad and deceased was living

in the house of CW-8 and accused was also living with her.

PW-3 stated that, he knows both the accused and the deceased.

PW-4 and PW-5 stated that, they do not know the accused and

deceased Naushad. However, with respect to the alleged

incident of fire, none of these witnesses have supported the case

of the prosecution. On the other hand, they pleaded their total

ignorance about the alleged incident. Still, PW-1 and PW-2 Crl.A.No.100358/2017

stated that deceased Naushad died due to burn injuries, but both

of them pleaded their ignorance as to how the deceased

sustained burns. Thus, the prosecution, except the statement of

PW-2 that the accused and deceased were living together in a

rented house belonging to CW-8, could not get any support from

these witnesses. Even after getting them treated as hostile and

cross-examining them also, the prosecution could not get any

support from any of these witnesses.

12. PW-6 - Maruti Gurusiddappa Marihal, Assistant Sub-

Inspector of Police, Murgod, in his evidence has stated that, on

08-09-2014 at about 8:30 a.m., based upon a telephonic

intimation about the MLC received from APMC Police Station as

per Ex.P-10, he proceeded to BIMS Hospital, Belagavi at

9:30 a.m. and saw that both the deceased and the accused

were admitted in the said Hospital. Immediately, he sent a

requisition as per Ex.P-11, to the Taluka Executive Magistrate,

Belagavi, requesting him to record the dying declaration of

Ms. Naushad. He also gave a written requisition as per Ex.P-12

to the Medical Officer, BIMS, to give a report about the fitness of

injured Naushad to give the statement. The Medical Officer gave

a report as per Ex.P-12 (b), stating that she was in a fit condition Crl.A.No.100358/2017

to give her statement. The witness further stated that the

Taluka Executive Magistrate visited the Hospital at about 11:05

a.m. and recorded the dying declaration of Naushad. Thereafter,

he (this witness) went inside the Ward and spoke to Naushad.

As requested by Naushad, he also recorded her statement, as

per Ex.P-13. Having returned to the Police Station, he handed

over the said statement at Ex.P-13 to the Station House Officer,

who registered the same in their Station Crime No.284/2014.

The witness further stated that, on 14-09-2014, through

CW-26, he came to know that Naushad succumbed to the burns.

As instructed, he made arrangement for the post-mortem

examination of her body and got the post-mortem examination

done. He delivered the dead body to CW-8, the relative of the

deceased Naushad, after post-mortem examination. In this

regard, he has identified his report at Ex.P-14. He has also

identified the photographs of deceased Naushad at Ex.P-17 and

photograph of the dead body at Ex.P-18.

13. PW-7 - Pundalik Adiveppa Torgal and PW-8 -

Somappa Shivappa Kalannavar, though were projected as

panchas for the scene of offence panchanama at Ex.P-2, Crl.A.No.100358/2017

however, they did not support the case of the prosecution.

Though they identified their signatures in the said panchanama,

they stated that they do not know as to the contents of the said

panchanama.

14. PW-9 - Smt. Bibijan Mahammadali Hukkeri was

projected as the land lady in whose house, the deceased

Naushad was said to be residing and also as the person knowing

about the live-in relationship of the accused and the deceased

and about their alleged illicit relationship. The prosecution had

also projected her stating that she also had the knowledge of the

alleged incident of burns caused to the deceased at the instance

of the accused. However, the said witness, except stating that

the deceased was living in her house on rental basis at Yaragatti,

has not supported the case of the prosecution any further.

Though she stated that, hearing about the burns sustained by

the deceased Naushad, she went to Civil Hospital at Belagavi,

but also stated that the patient did not express anything even by

gesture. Even after getting her treated as hostile, the

prosecution could not elicit any further statement in its favour in

her cross-examination.

Crl.A.No.100358/2017

15. PW-11 - Dr. Ashok Kumar Shetty has spoken about he

conducting autopsy on the body of deceased Naushad and giving

post-mortem report as per Ex.P-23. He has stated that the

deceased had sustained 60% to 70% burns. According to him,

the death was due to septicemia, as a result of 65% to 70%

burns sustained. In his cross-examination, he admitted a

suggestion as true that such burn injuries could be caused

accidentally also.

16. PW-12 - Dr. Savitri Prabhappa Bendigeri has stated

that, while working as Chief Medical Officer in a Community

Health Centre at Yaragatti, she has examined injured Naushad

on 07-09-2014 at 10:45 p.m., when she was brought to the

Health Centre at Yaragatti by a Police Constable by name

Rangannavar and Assistant Sub-Inspector of Yaragatti outpost.

The witness has stated that Naushad was smelling of kerosene

and was conscious and talking and she was also well oriented.

She noticed several burns on different parts of her body. The

witness stated that she noticed burns on Naushad which she has

described as below:

"1. Complete face burnt. Hairs singed.

2. Neck, front of whole chest, both chest burns present and peeling of skin present.

Crl.A.No.100358/2017

3. Whole of abdomen, till upper 3rd part of both thighs burnt and peeling of skin present.

4. Both right and left (upper limbs) arm and fore arms, front and back burns present and peeling of skin present.

5. Whole of back till waist reason burns present and peeling of skin present."

The witness stated that, she gave her (deceased Naushad)

the initial treatment and advised to shift her to BIMS Hospital for

further treatment. In that regard, she has issued a Wound

Certificate as per Ex.P-24. The witness produced the MLC

Register maintained in her Hospital and got it marked as

Ex.P-25. The witness further stated that along with the injured

Naushad, the Police had also brought the accused to her Hospital

whom also she examined. According to the witness, he was also

smelling kerosene. She noticed the following injuries upon him.

" 1. Face right side full burnt with blebs, chin burnt with blebs.

2. Front of chest burnt, left side cheek burnt.

3. Right and left palms both sides burnt and skin peeling and nails burnt.

4. Right arm and fore arm ventral side burnt.

5. Left arm and fore arm front side burnt."

Crl.A.No.100358/2017

The witness stated that after giving first aid treatment to

him (accused), she advised that, he also must be taken to BIMS

Hospital, Belagavi for higher treatment. Stating so, the witness

identified the Wound Certificate at Ex.P-26 as the one issued by

her with respect to the examination of the accused.

17. PW-13 - Preetam Bahubali Nasalapure in his evidence

has stated that, while working as Tahsildar of Belagavi, on

08-09-2014 morning, he received a requisition from the

Assistant Sub-Inspector, Murgod, for recording statement of

injured Smt. Naushad, W/o. Khazesab Gokak. On the same day

at 11:00 a.m., he went to Civil Hospital, Belagavi and enquired

about the health condition of the injured victim to give her

statement. From the Duty Doctor Mr. Sanjay Karpoor, he

confirmed that the patient was in a good condition to give her

statement. Then, himself, joined by his case worker approached

the injured and enquired her. He put questions to the injured

and the answers given by her were recorded by him. The

witness stated that he also ascertained the condition of the

patient to give statement from the mouth of the patient and said

that she was conscious and capable of understanding the

questions put to her and capable of giving answers to them. It is Crl.A.No.100358/2017

then he proceeded to record her statement. The witness further

stated that when he asked the injured patient as to who was

responsible for her then condition, the patient informed him that,

it was her friend Santosh Basayya Yenagimath (accused) of

Mathada Oni of Yaragatti. The patient also told that on the

previous night at 9:30 p.m., said Santosh having come in an

intoxicated condition, abused and assaulted her and then poured

kerosene upon her body and lit fire to it. Therefore she has

sustained burn injuries. The witness stated that she also shown

the burn injuries inflicted upon her. The witness further stated

that the incident took place in her house situated at Mathad Galli,

Yaragatti. The witness stated that the patient also told him that

she was having illicit relationship with Santosh since nine

months, as such, they were residing together in the said house.

Since last few days, Santosh was suspecting her chastity and

fidelity and that he was consuming liquor and quarrelling with

her. The witness also stated that the patient told him specifically

that it was the accused who poured kerosene on her body and lit

fire, as such, he is responsible for her said condition.

The witness stated that, after recording her statement, he

took her left toe impression on the statement recorded by him.

Crl.A.No.100358/2017

He has identified the requisition received by him from the ASI,

Murgod Police Station at Ex.P-27, the dying declaration of injured

Naushad said to have been recorded by him at Ex.P-28, his

signature therein at Ex.P-28(a) and the left toe impression of the

deceased Naushad at Ex.P-28(b). He also stated that after

verification, he has once again put his signature below the

verification which he has identified at Ex.P-28(c). He has stated

that, Dr. Sanjay Kapoor, who gave his opinion regarding the

health condition of the injured victim has also made his

endorsement on the dying declaration at Ex.P-28(d). The

witness has stated that subsequently, he has sent the statement

recorded by him to the Court on 17-02-2016, duly serving a

photocopy thereof to the Investigating Officer. The witness

stated that the finger prints of both the hands of the injured

victim were burnt, as such, he took the left toe impression of the

injured on her statement.

This witness was subjected to a detailed cross-

examination, wherein he adhered to his original version.

18. PW-14 - Ratansingh Patel has stated that while

working as Casualty Medical Officer in BIMS Hospital, Belagavi,

on 08-09-2014, in the night at about 12:55 a.m., he attended to Crl.A.No.100358/2017

a patient by name Santosh Basayya Yengimath brought in an

ambulance along with reference letter from PHC Yaragatti, with

the history of burns at Yaragatti. He has stated that he

examined the patient who was drowsy and noticed superficial

deep burn injuries on face, neck, chest, sternal region and both

the upper limbs. After giving first aid treatment, the patient

was shifted to burns ward. Stating so, the witness has identified

the Wound Certificate issued by him at Ex.P-29. The case

summary sheet and discharge card pertaining to the said injured

were identified by him at Exs.P-30 and P-31.

The witness further stated that on the same day i.e. on

08-09-2014, in the night at about 1:00 a.m., he has also

examined injured Naushad who was also brought in an

ambulance in which the injured Santosh Basayya Yengimath was

brought. A reference letter from PHC, Yaragatti was also sent

along with the patient who was brought with the history of burns

on 07-09-2014 at 9:30 p.m. in the house at Yaragatti. The

witness stated that the patient was also drowsy and he noticed

burn injuries on her face, neck, both upper limbs anterior portion

of chest and abdomen, partially on posterior portion of chest

and abdomen, anterior aspect of both thighs of upper one third.

Crl.A.No.100358/2017

After giving first aid treatment, she was shifted to burns ward.

The witness stated that while in the burns ward, the injured

Naushad succumbed to the injuries on 14-09-2014 at 12:05 a.m.

He informed the same to the Police as per intimation at Ex.P-32.

He has produced the OPD sheet prepared in respect of the

injured Naushad when she was admitted in Casualty Department

and got it marked at Ex.P-33. In his cross-examination, the

witness stated that he had enquired both the patients while

examining them. Though they were drowsy, both the patients

told him that they sustained burn injuries at home.

Dr. Sanjay Karpoor, the Associate Professor in BIMS

Hospital and also working in BIMS Hospital, Belagavi, was

examined as PW-15. The said witness in his evidence has stated

that he has examined the injured Naushad admitted in their

hospital with the history of burns. Upon the request made by

the PSI, Murgod Police Station, he has examined the condition of

the patient for giving her statement and found that she was in a

fit condition to give statement, which he has endorsed as per

Ex.P-12(b). The witness stated that he examined the patient before

making endorsement at Ex.P-12(b). He found the patient as being

conscious and able to give answers. The witness also stated that Crl.A.No.100358/2017

on the same day and at the same time, the Taluka Executive

Magistrate had also visited their Hospital and after enquiry with

him about the health condition of patient Naushad for giving her

statement, he proceeded to record the statement of the injured

after he (this witness) gave an endorsement as per Ex.P-28(d)

stating that the injured witness was in a fit condition to give her

statement. The witness stated that the Taluka Executive

Magistrate recorded the statement of the patient Naushad. He

further stated that on 14-09-2014, the patient Naushad died in

the burns ward. The case summary of deceased Naushad, he has

marked at Ex.P-34.

The witness also stated that a patient by name Santosh

was also admitted to burns ward in their Hospital on 08-09-2014

in the night at about 1:00 a.m. with 25% to 30% of superficial

deep burns. Next day morning, he examined the said patient

also and noticed that he was conscious, well oriented with time

and place. The treatment was given to him. He has produced

the case summary pertaining to the said Santosh Basayya

Yengimath and got it marked as Ex.P-30. In his cross-

examination from the accused's side, he adhered to his version Crl.A.No.100358/2017

that the deceased Naushad was in a fit condition to give her

statement.

19. PW-16 - Ayubkhan Pathan, the Head Constable of the

complainant Police stated that he has carried the FIR from the

Police Station to the Court in this case.

20. PW-17 - Rurdrappa Talawar has stated about he

tracing the accused and producing him before the Investigating

Officer and submitting a report in that regard as per Ex.P-36.

21. PW-18 - M.P. Nander, another Head Constable of the

complainant Police Station has stated about he receiving an MLC

through phone message from APMC Police Station, Belagavi, on

08-09-2014 and requesting the ASI by name M.G. Marihal to go

to the Hospital for recording the statement of the victim. He has

also stated that the said ASI having returned from the Hospital,

produced before him the statement of injured Naushad

(complaint), which he registered in their Station Crime

No.284/2014 and after preparing the FIR as per Ex.P-37, he sent

the same to the Court. He further stated that in this case, he

has also sent requisitions to the PDO, Grama Panchayat, seeking

the house extract of victim's house, which he collected as per Crl.A.No.100358/2017

Ex.P-21. On 14-09-2014, he received the death information of

victim in this case and substituted Section 307 with Section 302

IPC in the case, with the permission of the Magistrate. He also

stated that, he has recorded the statements of several of the

charge sheet witnesses in this case. He has also stated that he

has carried the sealed material objects to the Forensic Science

Laboratory (FSL), Bangalore.

22. PW-19 - Sudhakar Naik, the then Circle Inspector at

Saundatti has stated that, he took up the further investigation in

this case on 14-09-2014 and recorded the further statements of

several of the charge sheet witnesses, collected post-mortem

report, arrested the accused who was produced before him,

requested for the wound certificate and the dying declaration

issued and recorded in this case and collected the Wound

Certificate and copy of the dying declaration. He further stated

that he sent the seized articles to Forensic Science Laboratory

(FSL) and after completing the investigation, he has filed the

charge sheet in this case. The denial suggestions made to him

were not admitted as true by this witness.

Crl.A.No.100358/2017

23. In the light of the above evidence, it was the

argument of the learned Additional State Public Prosecutor for

the appellant that, the Doctor who conducted autopsy has

spoken that the death was due to burns. So also, PW-1 and

PW-2 also have stated that the deceased died due to burns.

Even though some of the prosecution witnesses have not

supported the case of the prosecution, however, the evidence of

PW-6 that he recorded the statement of the deceased, the

evidence of PW-13 that he recorded the dying declaration of the

deceased and the evidence of PW-15 - duty Doctor that the

deceased was in a fit condition to speak, proves beyond all

reasonable doubts that, the deceased has given her dying

declaration as well a complaint statement in which she has

categorically and clearly stated that, it was the accused who has

poured kerosene upon her and put fire with an intention to kill

her. Thus, the act of the accused falls under clause Fourthly of

Section 300 of the IPC. However, the Trial Court has

erroneously disbelieved the dying declaration as well the

statement of the deceased which resulted in the Trial Court

passing an erroneous judgment of acquittal in favour of the

accused.

Crl.A.No.100358/2017

In his support, the learned Additional State Public

Prosecutor relied upon the judgment of the Hon'ble Apex Court in

the case of Nagabhushan Vs. State of Karnataka reported in

(2021) 5 Supreme Court Cases 222, which judgment would be

referred to at an appropriate stage here afterwards.

24. Learned counsel for the respondent/accused in his

argument submitted that, majority of the prosecution witnesses

including the material witnesses have not supported the case of

the prosecution. Further, the prosecution has also failed to

prove the motive behind the alleged crime. Learned counsel also

submitted that the alleged dying declaration and the alleged

statement of the injured complainant since creates doubts in

believing them, the Trial Court, rightly did not believe the dying

declaration of the deceased. He also submitted that, the

statement of PW-13 in his evidence that, the dying declaration

was not recorded in the language and words used by the

deceased itself would go to show that the said dying declaration

is a doubtful document.

In his support, he relied upon a judgment of the Hon'ble

Apex Court rendered in the case of Muralidhar alias Gidda and

Anr Vs. State of Karnataka reported in AIR 2014 Supreme Court Crl.A.No.100358/2017

2200, which judgment would be referred to at an appropriate

stage here afterwards.

25. In the instant case, many of the prosecution witnesses

whom the prosecution has projected as material witnesses have

not supported the case of the prosecution. Among them, the

primary witnesses whom the prosecution had expected that they

would throw more light about the incident, however, who

disappointed the prosecution are, PW-9 and PW-10, who are

undisputedly, the sister and brother-in-law of the deceased.

However, both these witnesses, except stating that the deceased

was living in their house on rental basis at Yaragatti and that she

was working in a cloth shop at Yaragatti, have not thrown any

light regarding their alleged knowledge with respect to the

accused and the alleged live-in relationship of the accused and

the deceased. Both of them by stating that they have never

seen the accused earlier and that they do not know anything

about the live-in relationship of the accused and the deceased,

have disappointed the prosecution. No doubt, though both of

them have stated that they visited the deceased in the Hospital

while she was under treatment for burn injuries, but did not

speak anything about they hearing the details of the incident Crl.A.No.100358/2017

from the mouth of the deceased. On the contrary, PW-9 stated

that when she visited her injured sister in the Hospital, the

injured was not speaking. Both these witnesses have even

denied that they have given any statement to the Investigating

Officer as per Ex.P-19 and Ex.P-21 respectively.

26. The second set of witnesses among whom the

prosecution had fond hope are PW-1 and PW-2, who are the

husband and wife inter se. According to prosecution, PW-1 and

PW-2 being the neighbours of the deceased were aware of the

fact of the live-in relationship of the accused with the deceased

Naushad and also PW-1 had put off the fire and also shown the

spot of the offence to the Police. However, PW-1, though stated

that the deceased was living in the house of CW-8, but has

stated that he does not know the accused. He also stated that

he does not know anything about the accused quarrelling with

the deceased and their alleged illicit relationship. He further

proceeded to say that he does not know how the deceased

suffered burn injuries. He specifically stated that he did not go

and put off the fire on the body of the deceased on 07-09-2014

at about 9:30 p.m. He even denied that he had given any

statement to the Police as per Ex.P-1 and had shown the scene Crl.A.No.100358/2017

of offence to the Police where panchanama is said to be drawn in

his presence as per Ex.P-2. However, he has identified himself

in two photographs at Exs.P-3 and P-4, which, even according to

him, was taken in the house of the deceased. Thus, his evidence

that he did not know the place of the offence creates some

doubt.

PW-2, though followed her husband, i.e. PW-1, in her

evidence, however, she specifically stated that she knew both

the accused and the deceased and that the deceased was living

in the house of CW-8 and accused was also living with her.

Though she stated that the deceased Naushad died due to burn

injuries, but she stated that she does not know how she suffered

burn injuries. She even denied that she has stated so before the

Police in her statement as per Ex.P-5. However, it is to be

noticed that this witness was not cross-examined by the

accused's side, as such, her evidence given in the examination-

in-chief that, she knew both the accused and the deceased in the

adjacent house of the deceased and that the accused and

deceased were living together, has remained un-denied.

                                                    Crl.A.No.100358/2017





      27.        The next set of witnesses        among    whom the

prosecution had mainly relied are, PW-3, PW-4 and PW-5, who,

according to the prosecution, were the persons who had put off

the fire and heard about the incident from the mouth of the

deceased. However, as observed above, all these three

witnesses have also not supported the case of the prosecution.

28. Thus, the entire case of the prosecution rests upon a

portion of the evidence of PW-2, regarding the live-in

relationship of accused and the deceased Naushad and their co-

living in the house of CW-8 and the alleged dying declaration

said to have been given by the deceased Naushad before PW-13

- Taluka Executive Magistrate and her alleged statement before

PW-6 - Assistant Sub Inspector of the complainant Police. As

already observed above, PW-6, in his evidence has stated that,

after coming to know over telephone about the deceased having

been admitted in the District Hospital with the history of burns,

he rushed to the Hospital and after confirming from the Doctor

that the patient was in a fit condition to give her statement, gave

a requisition to the Taluka Executive Magistrate (PW-13),

requesting him to record the dying declaration of the injured and

ensured that PW-13 recorded the dying declaration of the injured Crl.A.No.100358/2017

and thereafter, he (PW-6) also recorded the statement of the

injured Naushad, which statement was subsequently registered

as the first information cum complaint in the case.

Similarly, PW-13 also has stated that he recorded the

dying declaration of the deceased subsequent to the requisition

given to him by PW-6 in that regard. The said statement

recorded by PW-6 is at Ex.P-13 and the alleged dying declaration

of the deceased said to have been recorded by PW-13 is at

Ex.P-28. Thus, the entire case of the prosecution mainly rests

upon the alleged dying declaration at Ex.P-28 and the alleged

statement of the injured complainant at Ex.P-13.

29. In the case of Muralidhar alias Gidda and another Vs.

State of Karnataka (supra), the Hon'ble Apex Court, while

dealing with an appeal against acquittal, had enunciated the

principles to be kept in mind, while dealing with such appeals, in

paragraph 12 of its judgment in the following words:

"....Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) there is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court, Crl.A.No.100358/2017

(ii) the accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court".

The present appeal since being an appeal against a

judgment of acquittal, the above principles enunciated by the

Hon'ble Apex Court will be borne in mind.

Crl.A.No.100358/2017

30. As already observed above, the case of the

prosecution is mainly based on the dying declaration alleged to

have been given by the deceased Naushad and also her alleged

statement before PW-6.

31. The Hon'ble Apex Court in the case of Purshottam

Chopra and another Vs. State (Government of NCT of Delhi)

reported in (2020) 11 Supreme Court Cases 489, after referring

to its several previous judgments, has summed up some of the

principles relating to recording of dying declaration and its

admissibility and reliability in paragraph 21 of its judgment,

which is extracted here below:

"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:

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

21.2. 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.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of Crl.A.No.100358/2017

mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eye witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. 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.

21.6. 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.

21.7. 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.

21.8. 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."

The above principles are also required to be borne in mind

while analysing Exs.P-23 and P-28 and corresponding oral Crl.A.No.100358/2017

evidence led by the prosecution with respect to those

documents.

32. PW-6 - Assistant Sub-Inspector of Police of the

complainant Police Station, in his evidence, has stated that after

receiving the telephonic MLC from APMC Police Station stating

that Noushad Gokak (deceased) and Santosh Yenagimath

(accused) were admitted to BIMS (Hospital), Belagavi, with burn

injuries and he should go there, he made entry in the Station

House Diary to that effect and immediately went to BIMS

Hospital, Belagavi at 9:30 a.m. After seeing the injured Naushad

in the Female Burns Ward and the accused in the Male Burns

Ward of the Hospital, he sent a requisition to the Taluka

Executive Magistrate, Belagavi, requesting him to record the

dying declaration of injured Naushad. He has further stated that,

he personally carried the requisition and gave it to the Taluka

Executive Magistrate, Belagavi and immediately returned to the

Hospital. He also gave a written requisition to the Medical

Officer, BIMS, to give a report as to whether injured Naushad

was in a fit condition to give her statement. The witness has

further stated that the Medical Officer gave a report stating that,

she was in a fit condition to give statement. The witness has Crl.A.No.100358/2017

marked MLC intimation received by his Police Station through

e-mail at Ex.P-10 and requisition given by him to the Taluka

Executive Magistrate at Ex.P-11 and his requisition to PW-15 -

Medical Officer, BIMS, at Ex.P-12 and the opinion given by the

Medical Officer (PW-15) (CW-21) - Dr. Sanjay Karpoor at

Ex.P-12(b).

The witness has further stated that the Taluka Executive

Magistrate came to Hospital at about 11:05 a.m. and recorded

the statement of the injured Naushad. At that time, he remained

outside the ward.

33. The Taluka Executive Magistrate, who was examined

as PW-13, in his evidence, has stated that on 08-09-2014, he

received a requisition from PW-6 - Assistant Sib-Inspector,

Murgod Police Station, for recording the statement of the injured

Smt. Naushadbi Khazesab Gokak. On the same day at

11:00 a.m., he went to Civil Hospital, Belagavi, and met the duty

Doctor - Mr. Sanjay Kapoor in burns Ward and ascertained from

him about the health condition of the injured and asked him

whether the injured was in a fit condition to give statement. It is

only after the Doctor informed him that the patient was in a fit Crl.A.No.100358/2017

condition to give the statement, he proceeded to record the

statement of the injured Naushad.

The said evidence of PW-6 and PW-13 could not be shaken

in their cross-examination, though both of them were thoroughly

cross-examined. Thus, the evidence of PW-6 shows that he

requested PW-13 - Taluka Executive Magistrate to record the

statement of the injured Naushad and the evidence of PW-13

would go to show that it is only after ascertaining from the

Doctor on duty (PW-15) about the fitness of the injured to give

her statement, he proceeded to record the statement of the

injured Naushad.

34. The evidence of PW-15 - Dr. Sanjay Karpoor also

supports the evidence of PW-6 and PW-13 that, both of them

had ascertained from him about the fitness of the injured

Naushad to give her statement to them. PW-15 has also stated

that he has examined the injured Naushad and after mentioning

that she was in a fit condition to give statement, he has made

his endorsement as per Ex.P-12(b) with his signature at

Ex.P12(c) and also told the Taluka Executive Magistrate who had

approached him that the patient was in a fit condition to give her Crl.A.No.100358/2017

statement, in which regard, he has made his endorsement on the

statement of the injured Naushad at Ex.P-28(d). This clearly

establishes that before recording the statement of the injured

Naushad, both PW-6 and PW-13 had got the injured medically

examined by the competent duty Doctor and it is only after the

Doctor certified that the patient was in a fit condition to give her

statement, they proceeded to record her statement. To that

effect, the statement alleged to have been given by the injured

Naushad which is at Ex.P-28 bears the endorsement of the

Doctor certifying that the patient was in a fit condition to give

her statement at Ex.P-28(d).

35. PW-13, in his evidence has further stated as to in what

manner he recorded the statement of the injured Naushad. He

has shown that before proceeding to record her statement

regarding the incident, he asked the injured some general

questions to ascertain whether she was conscious and capable to

understand the questions and give answers to them. It is only

thereafter he has proceeded to record her statement. The

witness stated that he put her several questions, for which she

gave him the answers which he has recorded in the questions

and answers format, which he has identified at Ex.P-28. The Crl.A.No.100358/2017

witness also stated that for his question as to who was

responsible for her then condition and how the incident took

place, the injured informed him that her friend Santosh Basayya

Yengimath of Mathada Oni, Yaragatti Taluk, Saundatti, came in

an intoxicated condition on the previous day night at about 9:30

p.m., abused and assaulted her and then poured kerosene on

her body and lit fire, as such, she sustained burn injuries. The

witness stated that the injured also shown her injuries caused on

her stomach, chest and two hands. The witness further stated

that when he asked her about the place where the incident took

place, the injured replied that it was in her house situated at

Mathad galli, Yaragatti. The witness further stated that at his

question regarding the intention of Santosh to commit the

offence, the injured Naushad replied that she was having illicit

relationship with Santosh since nine months, therefore, they

were residing together at Mathad galli at Yaragatti and since last

few days, Santosh was suspecting her chastity and fidelity and

was consuming liquor and coming home in a drunken state and

quarreling with her. On the night of the incident also, he came

in a drunken state, poured kerosene on her body and lit fire, as

such, he is responsible for her said condition. The very same Crl.A.No.100358/2017

answers said to have been given to PW-13 to his questions to the

injured are reflected in the form of recording of the statement of

the injured Naushad in Ex.P-28. Further it is in a question and

answers format. Even in the said statement at Ex.P-28 also, the

injured has stated that it was the accused and accused only who

poured kerosene upon her and lit fire on the previous day night,

suspecting her character and fidelity. She has also stated that

since nine months prior to the incident, both of them were

having illicit relationship with each other and were living together

in a house at Yaragatti.

PW-13 has also stated that since the fingers of both the

hands of the victim were burnt, he took her left toe impression

on her statement, which left toe impression he got marked as

Ex.P-28(b). Thus, PW-13 has shown that, by following due

process of law and taking all precautions which are required to

be taken while recording the dying declaration, he has recorded

the statement of the injured Naushad. However, in his cross-

examination, though the witness has withstood all the questions

put to him successfully and could not allow the defence counsel

to shake his evidence, but at one place, in a single sentence, he

has admitted a suggestion as true that, he has not used the Crl.A.No.100358/2017

specific words or language which was spoken by the injured

victim.

36. It is heavily relying upon the said single sentence in

his cross-examination, the learned counsel for the respondent/

accused vehemently submitted that, the dying declaration

recorded, not in the language or words of the deceased Naushad,

is not reliable.

In his support, he relied upon a decision of the Hon'ble

Apex Court in the case of Muralidhar alias Gidda and Anr Vs.

State of Karnataka (supra).

In the said case, the Trial Court has acquitted all the

accused for the offences punishable under Sections 302, 307,

144, 148 read with 149 of the IPC. In the appeal filed by the

State, this Court maintained the acquittal of the accused No.5,

but convicted accused Nos.1 to 4 and accused No.6 for the

offence under Section 302 read with Section 149 of the IPC.

Challenging the same, the convicted accused had preferred an

appeal before the Hon'ble Apex Court. The case in the said

appeal also had involved inter alia, a dying declaration at

Ex.P-22 as the sole basis for conviction. The Hon'ble Apex Court,

after noticing that the dying declaration recorded was not Crl.A.No.100358/2017

directly from actual words of maker but by witness on oration of

Police Sub-Inspector in the presence of Doctor held that, the

same, by itself, creates lot of suspicion about its credibility. It

further observed that the evidence of witnesses recording the

dying declaration coupled with the fact of over-writing about the

time of recording the statement and insertion of two names by

different ink, has rightly made the Trial Court to hold that, it was

not safe to rely upon the dying declaration and acquitted the

accused for want of any other evidence.

37. With respect to the alleged difference in the language

or not recording the statement of the injured victim in the exact

words used by the injured, few more judgments of the Hon'ble

Apex Court are also required to be referred to as below:

[a] In the case of Mafabhai Nagarbhai Raval Vs. State of

Gujarat reported in (1992) 4 Supreme Court Cases 69, with

respect to Section 32 of the Evidence Act (dying declaration),

wherein also, the incident was said to be involving pouring of

kerosene on the deceased and setting fire causing serious burn

injuries of 99% to her and recording of dying declaration by the

Doctor within five minutes of the occurrence of the alleged Crl.A.No.100358/2017

incident followed by recording of the statement by the Taluka

Executive Magistrate, the Court though observed that, though

the Trial Court has doubted the dying declaration recorded by the

Executive Magistrate, observing that the same was not in

question and answer form and also not being exactly in the

words stated by the deceased, but held that the Trial Court erred

in not acting upon the evidence of the dying declaration. It

further observed in the same judgment that the dying

declarations by themselves were sufficient to hold the accused

guilty. As such, the High Court had rightly interfered with the

appeal against acquittal. With the said observation, the appeal

preferred by the accused was dismissed.

[b] In the case of State of Rajasthan Vs. Bhup Singh

reported in (1997) 10 Supreme Court Cases 675, where in the

process of recording of dying declaration, the deceased was said

to be answering questions in Bagri language while Magistrate

recording it in Hindi and answers were also recorded not in the

form of question and answers, but in a narrative form, the

Hon'ble Apex Court at paragraph 10 of its judgment, was pleased

to observe as below:

Crl.A.No.100358/2017

"10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability, unless there are other reasons to doubt the truth of it."

[c] In Mohd. Hoshan, A.P. and another Vs. State of A.P.

reported in (2002) 7 Supreme Court Cases 414, while assessing

an alleged dying declaration said to have been recorded in

English language, when in fact the injured was said to have given

a statement in Urdu language, the Hon'ble Apex Court was

pleased to hold that, where the statement was recorded and

signed by the Magistrate, endorsement was made thereon by

the Doctor that the deceased made the statement in a fit state of

mind, and the deceased put her thumb impression on her

declaration which was made in Urdu and recorded in English and

thereafter explained in Hindi to the deceased, the High Court was

justified in holding the said dying declaration to be reliable.

Crl.A.No.100358/2017

[d] In the case of Amarsingh Munnasingh Suryawanshi

Vs. Vs. State of Maharashtra reported in (2007) 15 Supreme

Court Cases 455, wherein the question of reliability of dying

declaration was involved, since the statement of deceased was

recorded in Marathi language although the mother tongue of the

deceased was Hindi, observing that the deceased knew both

Hindi as well as Marathi, the Hon'ble Apex Court held that the

same would not make any difference as the deceased knew both

languages, viz. Hindi being her mother tongue and Marathi being

the mother tongue of her husband.

38. In the instant case, it has to be noticed that it is

nobody's case that the Taluka Executive Magistrate did not

record the statement of the injured Naushad by himself and that

the same was on oration of any Police Officer. But the only

factor is, PW-13, at one place in his evidence, has admitted a

suggestion as true that, he has not used the specific words or

language which was spoken by the injured victim. However,

except such a stray statement, nothing was brought in the cross-

examination of PW-13 from the accused's side as to in which

language the injured victim had given her statement to PW-13

and which were the words that had been substituted or replaced, Crl.A.No.100358/2017

if any, by PW-13. It is so because, PW-6 also in his evidence

stated that he too has recorded the statement of the very same

injured Naushad after the Taluka Executive Magistrate recorded

her statement. The said statement recorded by PW-6 is at Ex.P-

13 and it is also in Kannada language just like the dying

declaration recorded by the Taluka Executive Magistrate at Ex.P-

28. It is nobody's case that the deceased Naushad was not

knowing Kannada language which is also a regional language of

the place where she was residing. As such, merely because PW-

13, at one place, has admitted that he has not used the specific

words or language which was spoken by the injured victim, the

entire dying declaration at Ex.P-28 cannot loose its validity or

cannot be suspected, that too, when even the accused also has

not contended that the deceased Naushad had given any

different statement in a different language than the one which is

recorded at Ex.P-28. Therefore, the argument of the learned

counsel for the respondent/accused that Ex.P-28 creates doubt in

believing it, is not acceptable, on the other hand, the said

document since has withstood the thorough cross-examination

made upon it from the accused's side, inspires confidence to

believe the same.

Crl.A.No.100358/2017

39. The evidence of PW-6 that he sent a requisition to

PW-13 -Taluka Executive Magistrate, requesting him to record

the dying declaration of injured Naushad and the evidence of

PW-13 that, he received such a requisition from PW-6 and

thereafter proceeded to record the statement of injured Naushad

would go to show that, it is based upon the requisition made to

PW-13, he proceeded to the Hospital to record the statement of

injured Naushad. Further, the evidence of PW-6, PW-13 and

PW-15 that, upon the request of PW-6 and PW-13, Dr. Sanjay

Karpoor (PW-15) examined injured Naushad before her

statement was recorded by PW-13 and confirmed that the

injured Naushad was in a fit condition to give her statement,

would further go to show that the injured Naushad was in a fit

condition to give her statement. In the said circumstance,

merely because PW-9 and PW-10 stated that, when they visited

injured Naushad in the Hospital, she did not speak to them, it

does not mean that the injured Naushad was not in a fit

condition to speak. The medical evidence of PW-15 Doctor that,

as at the time of giving her statement, injured Naushad was in a

fit condition to speak and further evidence of PW-13 that, by

putting some general questions, he ascertained that the patient Crl.A.No.100358/2017

was conscious and was able to understand the questions put to

her, would clearly prove that the injured Naushad was in a fit

condition to give her statement, after understanding the

questions put to her. Thus, there is no reason to disbelieve the

statement at Ex.P-28, which is the dying declaration of the

deceased Naushad.

In the said dying declaration at Ex.P-28, the deceased has

clearly stated that, it was the accused and accused alone, who

was the cause for her then condition of sustaining burns. She

has clearly stated that both accused and herself had illicit

relationship since about nine months and they were living

together in a house at Yaragatti. Suspecting her character and

fidelity, the accused, on the night of 07-09-2014, at about 9:30

p.m., abused her in filthy language and pouring kerosene upon

her, lit fire to it, as such, she has sustained burn injuries. In

addition to stating so, she has also shown the injuries sustained

by her to PW-13. Therefore, there are no reasons to disbelieve

the dying declaration of the deceased Naushad given before

PW-13 at Ex.P-28.

40. Apart from the injured Naushad giving her dying

declaration before PW-13 as per Ex.P-28, she is also shown to Crl.A.No.100358/2017

have given one more statement to PW-6 - PSI, which statement

of deceased Naushad was registered as first information cum

complaint by the complainant Police. The said statement which

is at Ex.P-13 is recorded by PW-6, as a Police Officer. The said

witness (PW-6) also stated that before recording her statement,

he had already got ascertained her medical fitness to give

statement, by getting her examined through the duty doctor, i.e.

PW-15- Dr. Sanjay Karpoor. An endorsement to that effect can

be seen at Ex.P-12(b). The said endorsement does not merely

say that the patient was conscious and oriented to time, place

and person, but also mentions that the patient was responding to

verbal commands. It further depicts her other medical

conditions like PR-88 bpm, CVS-S1 & S2 (+) and R1 - B/l NUBs.

It is observing these status, the Doctor (PW-15) has certified

that the patient was fit to give her statement. It is only

thereafter, PW-6 has proceeded to record the statement of the

injured Naushad (complainant). Even in the said statement

which is at Ex.P-13 also, the injured Naushad had made similar

statement which she had made before PW-13- Taluka Executive

Magistrate in Ex.P-28. She has specifically and categorically

stated about herself and the accused living together in a live-in Crl.A.No.100358/2017

relationship and also having established illicit relationship

between them. She further stated that, on 07-09-2014, at about

9:30 p.m., the accused having come home after consuming

liquor, had abused her and suspected her character and pouring

kerosene upon her with an intention to kill her, put fire to it.

Both in her statement by way of dying declaration at Ex.P-28 and

also her statement in Ex.P-13, she has also stated that she was

shifted to Hospital in an ambulance by the neighbours. No

doubt those neighbours who were examined as PWs.1, 3, 4 and

5 have not supported the case of the prosecution in that regard,

however, merely because the neighbours have turned hostile,

the statement of the injured victim, both at Ex.P-13 and Ex.P-28

which inspires confidence to believe in them, cannot be doubted.

It also cannot be ignored of the fact that though PW-1, PW-3,

PW-4 and PW-5 have expressed their ignorance about the

accused living with the deceased, however, PW-2 who is none

else than the neighbour of the deceased and also the wife of

PW-1 has clearly and specifically stated that, she knows both

accused and deceased Naushad and that the deceased was living

in the house of CW-8 and accused was also living with her. The

said witness was not cross-examined from the accused's side.

Crl.A.No.100358/2017

Therefore, the evidence of PW-2 that the accused and deceased

were living together corroborates the statement of the deceased

Naushad made before the Taluka Executive Magistrate as per

Ex.P-28 and also made before the Police Officer (PW-6) as per

Ex.P-13. Thus, irrespective of the non-supporting of the

prosecution case by several of the prosecution witnesses, there

is powerful and strong evidence in the form of statements of

deceased Naushad which are at Ex.P-13 and Ex.P-28.

41. The said aspect was not properly analysed and

appreciated by the Trial Court. Merely because some of the

prosecution witnesses pleaded their ignorance about the manner

of occurrence of the alleged incident, the learned Sessions Judge

proceeded to suspect the statement of the injured Naushad at

Ex.P-13. Giving a reason that the Taluka Executive Magistrate

(PW-13) has admitted a suggestion that the dying declaration of

the deceased was not recorded in the language and words used

by her, it proceeded to doubt the dying declaration at

Ex.P-28. However, as analysed above, and in the light of the

observations made by the Hon'ble Apex Court in the cases which

are referred to above, the said analysis made by the learned

Sessions Judge cannot be called as a sound reasoning, as such, Crl.A.No.100358/2017

is not acceptable. On the other hand, it has to be necessarily

held that, the prosecution has proved that the deceased Naushad

has given her statements as per Ex.P-13 and Ex.P-28 before

PW-6 and PW-13 respectively and those two statements among

which Ex.P-28 is the dying declaration recorded by the Taluka

Executive Magistrate in accordance with the settled principles of

law, cannot be doubted or suspected.

42. The evidence of PW-11 - Dr. Ashok Kumar Shetty

shows that, he conducted autopsy on the body of the deceased

and has noticed superficial to deep burns over whole body,

sparing anterior aspect of both lower limbs and lower back and

buttocks. Stating that all injuries were anti-mortem in nature,

the Doctor opined that the death of the deceased Naushad was

due to septicemia, as a result of 65% to 70% burn sustained.

He got marked Post-Mortem Examination (PME) report given by

him at Ex.P-23. He stated that the burn injuries suffered were

sufficient to cause the death of deceased Naushad. Though he

admitted a suggestion in his cross-examination that such burn

injuries could be caused accidentally also, but except making

such suggestion to the Doctor, no effort was made from the

accused's side to show that the burns sustained by the deceased Crl.A.No.100358/2017

was caused accidentally. On the other hand, as observed above,

the deceased herself, both in her dying declaration before the

Taluka Executive Magistrate (PW-13) as well in her statement

before Police Officer (PW-6), has uniformly stated that the

accused poured kerosene upon her and lit fire to it. As such, the

possibility of any accidental catching of fire is over-ruled.

43. The statement of the deceased that she was poured

with kerosene before litting fire, gains support in the evidence of

PW-12 - Dr. Savitri Prabhappa Bendigeri, who was working as

the Chief Medical officer in Community Health Centre, Yaragatti

at the relevant point of time. The said witness has stated that

when the injured Naushad was brought to the Hospital on

07-09-2014, at 10:00 p.m., she (patient) was smelling

of kerosene. She further stated that she (injured Naushad)

was conscious and talking and was well oriented. The Doctor has

also stated that the pulse rate of the injured was 92,

Blood Pressure was 124/78, respiration was normal and the

general condition was fair. Thus, apart from showing that

even at that time also, injured Naushad though had sustained

burns, was still well oriented, conscious and talking, not Crl.A.No.100358/2017

only corroborates the statement of deceased in her dying

declaration at Ex.P-28 and the statement at Ex.P-13 that

accused poured kerosene upon her, but also further confirms

that, the evidence of the duty Doctor (PW-15) that injured

Naushad was in a fit condition to give her statement when Taluka

Executive Magistrate recorded her dying declaration, was not an

erroneous medical opinion and that the injured appeared to be

stable and well oriented for most part of her treatment period in

the Hospital.

44. PW-12 - Dr. Savitri Prabhappa Bendigeri also

examined the accused who was also brought to her along with

the injured Naushad. According to PW-12, even accused

Santosh Basayya Yenagimath was also smelling of kerosene. He

too was conscious and well oriented with normal pulse rate,

blood pressure and respiration. According to PW-12, she noticed

the following injuries upon the accused:

"1. Face right side full burnt with blebs, chin burnt with blebs.

2. Front of chest burnt, left side cheek burnt.

3. Right and left palms both sides burnt and skin peeling and nails burnt.

4. Right arm and fore arm ventral side burnt.

Crl.A.No.100358/2017

5. Left arm and fore arm front side burnt"

The very same witness (PW-12) in her cross-examination

from the accused's side, though admitted a suggestion that, if

fire caused due to accident, such burns found on the injured

could happen, but also stated that the injuries found on the

hands of the accused can be caused if a person who has suffered

burns catches hold of another person. To a Court question, the

very same witness has also answered stating that, if kerosene is

poured on any person and if kerosene is present in the hands of

that person who pours the kerosene, such injuries can be

caused. This opinion of the Doctor strengthens the statement

of the deceased that, the moment the accused put fire to her

after pouring kerosene, she, with an intention to get rescued,

caught hold of his hands, as such, the accused too had sustained

burns.

45. PW-14 - Ratansingh Patel, who was the Casualty

Medical Officer in BIMS Hospital at Belagavi, at the relevant point

of time, has stated that, on 08-09-2014, he has examined both

the accused and the deceased. He has also noticed burns upon

both of them and has issued Wound Certificate, case summary

sheet and discharge card, which he has identified at Ex.P-29, Crl.A.No.100358/2017

Ex.P-30 and Ex.P-31 respectively. He has also stated that the

accused had suffered superficial to deep burns over face, neck,

and sterile region and both upper limbs. He also stated that both

patients were drowsy, but they were able to speak and from

them, he ascertained that they sustained burn injuries at home.

The said injuries of burns found on the accused was attempted to

be explained by the accused in his statement under Section 313

of the Code of Criminal Procedure, 1973, (hereinafter for brevity

referred to as "the Cr.P.C."), as the ones caused when he is said

to have attempted to put off the fire found on the body of the

deceased Naushad and attempted to rescue her. However, he

has not explained as to how in his alleged attempt, he can

sustain so many injuries on different parts of his body, that too,

on the front side of his body including his face, chest, right and

left palm, left arm on the front side. On the contrary, Ex.P-13,

which is the statement given by the deceased before PW-6 would

go to show that, she has stated before PW-6 that when she was

set ablaze by the accused, she sustained burns on her chin and

chest portion and immediately she embraced the accused, as

such, he also sustained burns to his hands and face. The said

explanation given by none else than the deceased Naushad Crl.A.No.100358/2017

proves to be more probable. This is also for the reason that, a

person who is generally in such a situation, even if it is assumed

that he has attempted to rescue the lady under fire, would avoid

exposing himself from sustaining burns, that too, on his face,

chest, arms, etc. Whether such a rescuer pours water or covers

the person amidst fire with any blanket, still, these kind of

injuries which are caused on the person of the accused generally

would not occur. On the other hand, if the lady under fire

embraces the other person firmly, then, these kind of injuries are

likely to occur on the person of the rescuer. Therefore, the

statement of the deceased at Ex.P-13 that the accused also

sustained injuries since she embraced him while under fire, is

more nearer to the truth and as the only possibility as to how the

accused also had sustained injuries in the incident.

46. The defence of the accused was initially a general

denial including taking the contention that the deceased was a

stranger to him. However, in his statement under Section 313 of

the Cr.P.C., as observed above, he took a contention that he

being a driver of a Car, was coming in front of the house of the

deceased on the date of the incident at about 9:30 p.m. and

after seeing a gathering in front of the house of the deceased Crl.A.No.100358/2017

and coming to know from the people that one Ms. Naushad has

caught fire, he went inside and saw that Naushad was in the

flames of the fire. Noticing that none from the gathering made

any attempt to put off the fire, he attempted to put off the fire

with his hands. His statement that there were large number of

people gathered in the spot, but none of them attempted to put

off the fire, is hard to believe. When there is large gathering of

people including neighbours, in such a situation, at least some of

them would come forward to put off the fire.

The defence taken up by the accused is also not convincing

for another reason that, in his discharge card of the accused

which is at Ex.P-31 and got marked by none else than the

treating Doctor, the history in brief is shown as "sustaining

accidentally burns due to stove burst while making the tea",

which means, before the Doctor, a separate story is given as stove

burst while making tea and in his statement under Section 313 of

the Cr.P.C., he has come up with a different story, without noticing

that before the Doctor, a different version had already been given.

Probably it may also be for the reason that, if the alleged bursting

of the stove is continued as his defence, then, the non-finding and

seizure of the alleged bursted stove from the spot would go Crl.A.No.100358/2017

against him, so also, it amounts to acceptance of proof that, at

that time, he was residing in the house of the deceased.

Therefore, as an after thought, the accused has come up with a

different defence of the alleged passerby as a Car driver in front

of the house of the accused at the time of the accident, as such,

the defence of the accused would fail to imbibe any doubt in the

case of the prosecution, even a slightest doubt.

47. The evidence of the Police witnesses from PW-16 and

PW-19 corroborates the case of the prosecution evidence of

PW-18 that, based upon the complaint statement produced

before him by PW-6, who had recorded it in the Hospital, he

registered a complaint in their Station and submitted FIR to the

Court for the offence punishable under Section 307 of the IPC,

supports the evidence of PW-6 that he recorded the statement of

injured Naushad in the Hospital. The evidence of the

Investigating Officer would further go to show that, he has

conducted the investigation in the matter and coming to the

conclusion that it was the accused and accused alone who was

the cause for the death of the deceased Naushad, has filed

charge sheet, has been corroborated by the evidence of Crl.A.No.100358/2017

deceased Naushad, solely in the form of dying declaration and

medical evidence.

48. Our Hon'ble Apex Court in the case of State of Uttar

Pradesh Vs. Veerpal and another reported in 2022 SCC OnLine

SC 129, while appreciating the evidentiary value of dying

declaration under Section 32 (1) of the Evidence Act, has

reiterated the principles laid down by it in the case of Khushal

Rao Vs. State of Bombay [AIR 1958 SUPREME COURT 22] as to

the circumstances under which a dying declaration may be

accepted, without corroboration, in the following lines:

"(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as Crl.A.No.100358/2017

practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

The dying declaration at Ex.P-28, in the instant case, which

is coupled with the statement of the deceased at Ex.P-13, which

was recorded by PW-6, answers all the requirements or fulfils the

principles reiterated in Veerpal's case (supra).

49. Lastly, the submission of the learned counsel for the

respondent/accused that, the accused tried to extinguish the fire

and in the said process, he sustained the injuries, therefore, it

cannot be said that the accused committed the offence Crl.A.No.100358/2017

punishable under Section 302 of the IPC, is also not acceptable,

since it is found out from the analysis made above that, the

accused has not attempted to put-off the fire but, it was himself

who poured kerosene from the Can at MO-3 upon the dress

nighty worn by the deceased Naushad at that time and lit fire to

it using a match stick from the match box at MO-4, is further

supported by the FSL report at Ex.P-40, which has observed that

the said dress material (nighty), the kerosene Can and the ash of

burnt nighty have all responded positive for the presence of

kerosene.

50. In a similar circumstance, the Hon'ble Apex Court in

the case of Nagabhushan Vs. State of Karnataka (supra), has

held in para-12 of its judgment that, a similar act of the accused

pouring kerosene on the deceased and putting fire to it had come

out in the dying declaration at Ex.P-5 before it, has made the act

of the accused falling under clause Fourthly of Section 300 of the

IPC.

51. However, the Trial Court, without analysing the

evidence placed before it in detail, opined that the non-

supporting of the case of the prosecution by the neighbours of

the house where the incident took place and more particularly, Crl.A.No.100358/2017

the single sentence admission made by PW-13 - Taluka

Executive Magistrate that the statement recorded at Ex.P-28 was

not in the language and the words used by the deceased, has

doubted the case of the prosecution and gave the benefit of the

said doubt to the accused, which resulted in the acquittal of the

accused from the alleged offences. Since the said reasoning

given by the learned Sessions Judge's Court now proves to be an

erroneous one, and since the prosecution has proved its case

beyond all reasonable doubts, the said judgment of acquittal

deserves to be set aside and the accused deserves to be

convicted for the offences punishable under Sections 302 and

504 of the IPC. As such, the impugned judgment under appeal

warrants interference at the hands of this Court.

Accordingly, we proceed to pass the following:

ORDER

[i] The Criminal Appeal is allowed;

[ii] The judgment of acquittal dated 21-04-2017

passed in Sessions Case No.75/2015, by the Court of the

learned Principal Sessions Judge at Belagavi, is set aside;

[iii] The respondent/accused - Sri. Santosh

Basayya Yenagimath, Age: 28 years, Occ: RMP Doctor, Crl.A.No.100358/2017

R/o. Hirekoppa, Now residing at Yaragatti, Tq: Saundatti,

Dist: Belagavi, is found guilty of the offences punishable

under Sections 302 and 504 of the Indian Penal Code,

1860.

The matter is passed over to hear on sentence.

ORDER ON SENTENCE

Heard the learned counsel for the respondent/accused and

learned Additional State Public Prosecutor for the appellant -

State, on sentence.

Learned Additional State Public Prosecutor for the

appellant-State submitted that, since the accused has committed

a heinous offence, the maximum punishment awardable under

Section 302 of the Indian Penal Code, 1860, be awarded to him.

Learned counsel for the respondent/accused, in his

argument submitted that, the accused is of young age and a

married person with family, as such, a lenient view be taken.

It is the sentencing policy that the punishment imposed

should not be either exorbitant or for name-sake for the proven

guilt. It must be proportionate to the guilt for which the

accused is found guilty of.

Crl.A.No.100358/2017

Though Section 302 of the Indian Penal Code, 1860

prescribes the punishment of death or imprisonment for life, but

the present case is not one of the rarest of rare cases to be

punished with death. As such, considering the alleged

mitigating factors and the circumstances of the case, we proceed

to order the following sentence upon the accused.

[1] For the offence punishable under Section

302 of the Indian Penal Code, 1860, the

respondent/accused - Sri Santosh Basayya

Yenagimath, Age: 28 years, Occ: RMP Doctor,

R/o. Hirekoppa, Now residing at Yaragatti, Tq:

Saundatti, Dist: Belagavi, is sentenced to undergo

Rigorous Imprisonment for life and shall also be

liable to pay fine of `20,000/- (Rupees Twenty

Thousand Only), in default of payment of fine, he

shall undergo simple imprisonment for a period of

six months;

[2] For the offence punishable under Section

504 of the Indian Penal Code, 1860, the accused -

Sri. Santosh Basayya Yenagimath, Age: 28 years,

Occ: RMP Doctor, R/o. Hirekoppa, Now residing at Crl.A.No.100358/2017

Yaragatti, Tq: Saundatti, Dist: Belagavi, shall

undergo Rigorous Imprisonment for a period of six

months.

Both the sentences shall run concurrently.

[3] The Material Objects at MO-1 to MO-4

which are shown to be worthless are ordered to be

destroyed only after the appeal period is over and if

no appeal is preferred within the said period.

[4] The accused is entitled for a free copy of

this judgment immediately.

Registry to transmit a copy of this judgment along with

Sessions Judge's Court records to the learned Sessions Judge's

Court, forthwith, for doing the needful in the matter in securing

the accused for serving the sentence and in accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE BMV*