[Cites 12, Cited by 0]
Karnataka High Court
Mohammed Ismail vs State By Women Police on 19 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2026:KHC:10405-DB
CRL.A No. 1995 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1995 OF 2018
BETWEEN:
1. MOHAMMED ISMAIL
S/O LATE ABDUL KHUDDUS
AGED ABOUT 37 YEARS
R/O HONNUDIKE VILLAGE
GULUR HOBLI
TUMAKURU TALUK AND
DISTRICT-572122.
...APPELLANT
(BY SRI. SHAIKH SAOUD, ADVOCATE)
Digitally signed AND:
by DEVIKA M
Location: HIGH
COURT OF 1. STATE BY WOMEN POLICE
KARNATAKA TUMAKURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
...RESPONDENT
(BY SRI. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 15.09.2018 AND ORDER OF SENTENCE
-2-
NC: 2026:KHC:10405-DB
CRL.A No. 1995 of 2018
HC-KAR
DATED 18.09.2018 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMAKURU, IN S.C.NO.119/2017 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 304(B) OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard Sri Shaikh Saoud, learned counsel
appearing for the appellant and Smt. Rashmi Jadhav,
learned Addl. SPP appearing for the respondent-State.
2. This appeal is filed by the accused challenging
the judgment of conviction and order of sentence passed
against him for the offence punishable under Section 302
of the Indian Penal Code (for short, "IPC"), sentencing him
to undergo rigorous imprisonment for life and to pay a fine
of Rs.50,000/-, and also for the offence punishable under
Section 304B of IPC, sentencing him to undergo rigorous
imprisonment for a period of 10 years.
NC: 2026:KHC:10405-DB
HC-KAR
3. The factual matrix of the case of the
prosecution is that the deceased is the wife of the accused
and both of them were married on 27.08.2016 at Mysuru
and on 05.07.2017 at 03.00 p.m., in the house of the
accused, he asked her to get meals from the hotel. When
she refused, the accused abused her in filthy language and
humiliated her and then poured kerosene and set her on
fire and as a result she sustained burn injuries and
immediately the neighbours i.e., PW2 and PW3 shifted the
injured to the hospital in an ambulance and after getting
the intimation from the hospital, Smt.Indiramma, WHC-
482 went to the hospital and recorded the statement of
the injured and registered the case in Crime No.69 of 2017
for the offences punishable under Sections 498A, 307 and
504 of IPC and subsequent to her death invoked the
offences under Sections 304B and 302 of IPC.
4. The Investigating Officer conducted the
investigation and filed the charge sheet and the accused
was secured before the Trial Court and the Court took
NC: 2026:KHC:10405-DB
HC-KAR
cognizance and thereafter framed the charges. The
accused did not plead guilty and hence, the prosecution
examined witnesses P.W.1 to P.W.15 to substantiate the
case and also marked documents Exs.P1 to P37 and also
MO.1 to MO.7. On closure of the evidence of prosecution
case, recorded the statement of the accused under Section
313 of Cr.P.C and accused did not choose to lead any
evidence. The Trial Court having assessed both oral and
documentary evidence, convicted the accused for the
above offences. The main contention of the counsel
appearing for the appellant in his argument that the
prosecution though relies upon the prosecution witnesses
and witnesses P.W.2, P.W.3 and P.W.4 are the neighbours
who have not supported the case of prosecution and
turned hostile. The P.W.1 is the father of the deceased.
The counsel would vehemently contend that the
prosecution mainly relies upon the document of Ex.P.29 -
dying declaration. Having considered Ex.P.29, there is no
any such endorsement by the Doctor that she was
NC: 2026:KHC:10405-DB
HC-KAR
competent to make the statement. The counsel also
brought to notice of this Court that dying declaration was
recorded by P.W.12 and her evidence also not inspires the
confidence of the Court. The counsel would submits that it
is the specific defence of the accused/appellant that when
he comes to know about the incident, immediately he
rushed to the house and he only broke open the door and
tried to extinguish the fire. The counsel would contend
that the said defence is not accepted by the Trial Court
and the Trial Court fails to take note of the fact that he
had also suffered the burn injuries when he tried to save
the life of his wife. The counsel would contend when the
DVD is placed before the Court and no certificate under
Section 65B(4) of Indian Evidence Act is produced and no
any ash value whether it is tampered or not. The counsel
would contend that the evidence of P.W.11 before the
Court is that P.W.2 and P.W.3 brought her to hospital and
admittedly she has suffered burn injuries to an extent of
90%. The counsel would submits that when the 313
NC: 2026:KHC:10405-DB
HC-KAR
statement was recorded second time, he has given the
explanation how he had sustained the injuries and how he
came to know about the incident. The counsel would
vehemently contend that the dying declaration is not true
and same cannot be a sole material to convict the
accused. Having considered overall evidence available on
record, particularly Ex.P.20 Ex.P.28 and Ex.P.29, the
prosecution has not made out the case.
5. Per contra, the learned Addl. SPP appearing for
the respondent-State, Rashmi Jadhav would submits that
Ex.P.29 was recorded by P.W.12 that too in the presence
of the Doctor. When the requisition was given in terms of
Ex.P28 and Doctor has certified on the very requisition
itself that she is having conscious and oriented and she
can give statement. The counsel also would contend that
Ex.P.20 is the document of spot mahazar and though
defence was taken that he only tried to save the life of his
wife and not found in Ex.P.20 with regard to the same.
The counsel also submits that Court has to take note of
NC: 2026:KHC:10405-DB
HC-KAR
conduct of the accused and when the wife was suffering
from burn injuries and an ordinary prudent man as a
husband would shift the wife to the hospital, but the
evidence of the Doctor who has been examined as P.W.11
is very clear that P.W.2 and P.W.3 have brought the victim
to the hospital in an Ambulance. Though P.W.2 and P.W.3
have turned hostile, the evidence of Doctor is very clear
that both P.W.2 and P.W.3 brought her to the hospital and
even in the cross-examination of the Doctor also, not
denied the same.
6. The counsel would submits that when the CD
was marked as MO.1 through the Doctor, since Doctor
was also present at the time of recording of dying
declaration, spoken about the same and also the same is
played before the Court and same is not objected by the
defence at the time of marking and also even during the
course of cross-examination of the Doctor, nothing is
suggested that the same was not recorded by the P.W.12.
The counsel would submits that P.W.12 who recorded the
NC: 2026:KHC:10405-DB
HC-KAR
dying declaration categorically deposes before the Court
that she has recorded the statement of the victim in the
mobile and even during the course of cross examination of
P.W.12 also, nothing is disputed that she did not record
the statement of the victim in the mobile and no dispute to
that effect.
7. The counsel would submits that the document
Ex.P20 is very clear with regard to the scene of occurrence
and no such breaking open the door by the accused as
defence was taken and even though in 313 Statement
stated like that but, he did not explain the same in his 313
statement why he did not shift the injured victim to the
hospital immediately when he comes to know about the
burn injuries on the wife. The counsel also submits that
the material available before the Court is very clear that
accused only poured the kerosene and set the fire. It is
very clear that quarrel was taken place with regard to the
providing of meal in the said house and incident was taken
place at 3:00 'O' clock and immediately thereafter, she
NC: 2026:KHC:10405-DB
HC-KAR
was shifted to hospital and her statement was recorded in
the very evening without any delay. The counsel would
submits that MO.1 is CD and MO.2 is a Can and MO.3 to
MO.5 are match box, half burnt cloth and also the ash was
collected and marked and hence, not a case for acquittal.
8. Having heard the learned counsel for appellant
and also the learned Addl. SPP appearing for respondent-
State and in keeping the grounds which have been urged
in the appeal as well as considering both oral and
documentary evidence available on record, the point that
would arise for the consideration of this Court are:
i) Whether the Trial Court committed an
error in convicting the accused for both
the offences under Section 302 and
Section 304B of Indian Penal Code and
the conviction and sentence imposed by
the Trial Court requires interference of
this Court?
ii) What Order?
- 10 -
NC: 2026:KHC:10405-DB
HC-KAR
Point Nos.1 and 2:
9. Having considered both oral and documentary
evidence available on record and we have given our
anxious consideration to both the evidence. No dispute
with regard to the fact that marriage was taken place on
27.08.2016 and incident was taken place on 05.07.2017.
It is also not in dispute that incident was taken place in
the matrimonial home of the accused and also victim had
sustained the burn injuries to an extent of 90%. When the
Victim has sustained burn injury to an extent of 90%,
question also arises before this Court whether with the
burn injury of 90%, she could be able to give any
statement before the P.W.12 and whether she was
conscious and capable enough to give statement. The
prosecution mainly relies upon the document of Ex.P.29.
10. It is also important to note that before
recording dying declaration as per Ex.P.29 and Ex.P.28
requisition was given to the Doctor, the Doctor made an
endorsement on the requisition itself that she is conscious
- 11 -
NC: 2026:KHC:10405-DB
HC-KAR
and oriented and though counsel appearing for the
appellant would submits that no such endorsement on
Ex.P.29 and when the requisition was made and also
asked the Doctor whether she was able to give such
statement on the very requisition itself, endorsement was
made and hence, the contention of the appellant's counsel
cannot be accepted that there was no any endorsement on
Ex.P.29. Having perused the Ex.P.29-dying declaration, it
is very clear that victim made the statement that accused
was abusing that she did not beget the child even after the
marriage and also he was quarrelling with her. That on
05.07.2017 at 3:00 p.m., accused himself brought the
food from the hotel and asked her to take the food, but
when she refused, he abused in a filthy language stating
that she did not cook the food, but when the same is
brought from the hotel also, she is not ready to take the
same and immediately assaulted with his hands and with
an intention to take away her life, brought the kerosene
can and poured on her and told that she would not beget
- 12 -
NC: 2026:KHC:10405-DB
HC-KAR
the children and he is going to conduct second marriage
and lit the fire and even did not put water to extinguish
the fire. When she screamed at the spot, immediately
P.W.2 and P.W.3 rushed to the house and brought the
Ambulance and both of them shifted her to the hospital
and hence, she has given the statement in the presence of
the Doctor. The Doctor also made an endorsement on that
statement and the statement was recorded at 6:15 p.m.,
in the presence of the Doctor and based on this dying
declaration, case was registered. Now this court has to
examine the evidence of P.W.11 and P.W.12.
11. The Doctor-P.W.11 in her evidence categorically
deposes that P.W.2 and P.W.3 brought her to the hospital
in an Ambulance and though P.W.2 and P.W.3 have turned
hostile and did not speak anything about the fact that they
did not shift the injured to the hospital, but evidence of
P.W.11 is very clear, even mentioned the name of these
two persons that they brought her to hospital in 108
ambulance and hence, it is very clear that P.W.2 and
- 13 -
NC: 2026:KHC:10405-DB
HC-KAR
P.W.3 are won over by the accused. The Doctor also says
that she was conscious and oriented and she was able to
give statement and to that effect Doctor certified that she
was able to give statement. It is also her evidence that
PSI of Women Police Station has submitted requisition in
terms of Ex.P.28 and also recorded the statement of the
victim in the casualty itself and the said statement was
recorded in her presence only and the victim had given the
history about the incident was taken place at 3:00 p.m.,
and due to quarrel, husband poured the kerosene and set
on fire and her thumb mark was also obtained after
recording the same and the same was also videographed
and Ex.P.29 - dying declaration is marked and also witness
says that when she examined the accused, found burn
injuries on his left hand at the juncture of forearm and the
wrist and hence, it is very clear that the accused also
sustained burn injuries and also issued the wound
certificate in terms of Ex.P.30. The evidence of P.W.11 is
very clear that if any person pours the kerosene, injuries
- 14 -
NC: 2026:KHC:10405-DB
HC-KAR
which have been mentioned could be caused, but she was
also smelling kerosene when she examined the victim. In
the cross-examination, the suggestion was made that she
has administered the pain killer and when the pain killer is
administered, normally the patient gets drowsiness and
the same is not accepted. However, it is elicited that hairs,
lips and feet of the victim were not suffered any burn
injuries, but other parts of the body were having burn
injuries and also there were number of persons in the
casualty and suggestion was made that statement was not
recorded in her presence, but witness says that it was
recorded and same was reduced into writing, though not
endorsed that she was competent and conscious on
Ex.P.29, but categorically says that same is mentioned in
Ex.P.28, but categorically mentioned in Ex.P.9 itself that in
her presence only, same was recorded. It is also the
evidence that police themselves have recorded the
proceedings of giving statement by the victim in the
mobile and twice this witness reiterates that the same was
- 15 -
NC: 2026:KHC:10405-DB
HC-KAR
also videographed in the mobile, but during the course of
cross examination of this witness, nothing is suggested
that dying declaration was not recorded in the mobile. This
witness was recalled for further examination and CD/DVD
is marked before the Court as MO.1 and at the time of
giving statement, the victim was conscious and the same
is deposed by the Doctor and in CD - MO.1, it is clearly
visible that entire face of the victim was burnt and the
victim was in emergency casualty at the time of recording
the statement and MO.1 also played before the Court and
both defence as well as prosecution counsel were also
present and the same was played by using the official
laptop with the assistance of the computer staff. This
witness again further cross examined, but it is elicited that
burn injuries on the victim are more than 90% and also
suggested that now the recording shown to him is first
time seen by him, but no suggestion was made to this
witness that the same was not recorded in the mobile and
even not disputed marking of the CD - MO.1 and even not
- 16 -
NC: 2026:KHC:10405-DB
HC-KAR
suggested that no such recording was made. There is no
any effective cross examination with regard to marking of
CD as well as the contents of MO.1.
12. The other witness is P.W.12 who recorded the
dying declaration and reiterates that given the requisition
and thereafter recorded the dying declaration in terms of
Ex.P.29 and also issued the FIR based on the statement
and also drawn the mahazar in terms of Ex.P.24 and also
taken the accused to the custody, spot mahazar was also
conducted in terms of Ex.P.20 and also identifies the MOs
and this witness was subjected to cross-examination, but
suggestion was made during the course of cross-
examination that in view of first aid given to the victim,
she was not in a position to give any statement and the
same was denied and also categorically admits that the
dying declaration-Ex.P.29 got written through W.H.C
Smt.Indiramma and also corrections is found and witness
says that she only done the said corrections. It is
suggested that she was not in a position to make
- 17 -
NC: 2026:KHC:10405-DB
HC-KAR
statement and the same was denied. During the course of
cross examination of this witness also when the P.W.12
categorically says that she has recorded the dying
declaration and also same was videographed through her
mobile and this witness not disputed recording of dying
declaration in the mobile also and even not disputed the
same.
13. Having considered the evidence of P.W.11 and
P.W.12, it is very clear that dying declaration was
recorded in terms of Ex.P.29 and injured/victim narrated
the same. No doubt she has suffered the injury to an
extent of 90% and the same is also elicited from the
mouth of P.W.11 - Doctor, but when the Doctor certifies
and makes an endorsement in Ex.P.28 and also in Ex.P.29
that in her presence only dying declaration was recorded
and the same was videographed and videographing of the
same was also played before the Court by playing MO.1
with the laptop and all these factors were not disputed by
the defence during the course of cross-examination of
- 18 -
NC: 2026:KHC:10405-DB
HC-KAR
P.W.11 and P.W.12. When such being the case, when the
same is marked, it was not objected and even not
disputed during the course of cross-examination, the very
contention of the counsel appearing for the appellant that
there is no 65B(4) certificate also cannot be accepted.
14. It is important to note that the very witness
who recorded the dying declaration comes before the
Court and deposes before the Court that she only recorded
the same in her mobile and the same is a primary
evidence before the Court, but the same is transmitted to
the CD P.W.12. When such being the case, when there is
no dispute at the time of marking and also during the
course of cross examination, not disputed the same, the
said contention of the counsel cannot be accepted and
hence, the very evidence of P.W.11 and P.W.12 is
consistent and reliable and not disputed during the course
of cross examination and hence, this Court can rely upon
the dying declaration-Ex.P.29.
- 19 -
NC: 2026:KHC:10405-DB
HC-KAR
15. Now the evidence before the Court is with
regard to the witnesses P.W.2 and P.W.3 and this Court
already made an observation that P.W.2 and P.W.3 only
shifted the injured but they turned hostile and they are
won over by the accused. But during the course of cross
examination also not disputed when P.W.11 says that
these two witnesses P.W.2 and P.W.3 have brought the
injured to the hospital and also the fact that no dispute
that they are the neighbours of the house of accused and
even though they turned hostile and the fact that they
won over is very clear considering the evidence of P.W.11.
16. The other evidence is P.W.1 who is the father of
the victim and his evidence is also very clear with regard
to performing of marriage and came to know about his
daughter is no more and when he went to hospital at that
time, she was not in a position to make statement and
P.W.1 turned hostile. The witnesses P.W.5 and P.W.6 who
are the brothers of the deceased and P.W.10 mother of
the deceased have also turned hostile.
- 20 -
NC: 2026:KHC:10405-DB
HC-KAR
17. The defence of the accused is that he was not in
the spot and having received the information, he rushed to
the house and tried to extinguish the fire and no doubt in
the wound certificate which is marked before the Court
shows that he had sustained the injuries to his hand. But,
the Court has to take note of the very conduct of the
accused that when the wife was burning, the very ordinary
prudent husband would shift the injured to the hospital,
but the accused who is the husband did not shift the
injured to the hospital, but, P.W.2 and P.W.3 immediately
shifted the injured by securing the Ambulance and Court
has to take note of conduct of the accused. The very
conduct is very clear that when he has suffered burn
injuries, it is very clear that he was very much present at
the spot and hence, the very dying declaration of the
victim that accused only poured the kerosene and set the
fire is very clear and apart from that clothes of accused
which have been seized also burnt and the same evidence
the fact that he was very much present at the time of the
- 21 -
NC: 2026:KHC:10405-DB
HC-KAR
incident. Though he claims that he was outside, not in the
spot and also claims that he came to know about the same
by information, but who gave the information to him,
nothing is stated with regard to the same. When such
being the case, it is very clear that he poured the
kerosene and burnt his wife. The document Ex.P.1 is very
clear that father had lodged the complaint immediately
when he came to know about the same, but father also
turned hostile. The document Ex.P.20 relied upon by the
prosecution as well as the counsel for accused. The
prosecution by relying upon the document at Ex.P20
contend that there was no any damage to the door and
also nothing is mentioned in Ex.P.20 that the door was
damaged and in 313 statement he gives an explanation
that he broke open the door and tried to rescue his wife,
but no such material is found having considered Ex.P.20
and no doubt in the cross-examination, suggestion was
made that he tried to extinguish the fire by breaking open
the door and substantiate the same, there is no material
- 22 -
NC: 2026:KHC:10405-DB
HC-KAR
before the Court. The accused ought to have explained
how his wife has suffered the burn injuries under Section
106 of Evidence Act, but he did not explain the same and
his presence was very much there at the spot and even
P.W.2 turned hostile, but categorically deposes that both
are cordial and while she was going to bring the water,
both of them talking each other and the same was
witnessed. But in the cross examination of P.W.2, the
same is also not disputed by the defence and this evidence
also clearly discloses that he was very much present.
When all these materials are available before the Court
and the same is pointing out the very role of the accused
that he was very much present and he only poured the
kerosene and set the fire and medical evidence also
corroborates the same, particularly the dying declaration is
reliable and the evidence of P.W.11 Doctor as well as PSI
who recorded the statement of injured is very clear and no
doubt the Trial Court convicted the accused for both
offences under Section 302 and 304B of IPC. There is no
- 23 -
NC: 2026:KHC:10405-DB
HC-KAR
any allegation for subjecting her for cruelty and only
victim says at the time of recording her dying declaration
that on that day there was a quarrel and he was telling
that she will not beget the children and hence, he intend
to contact second marriage, but no such allegations are
made earlier to this incident and there was no any
complaint and with regard to any harassment or dowry
demand or acceptance, nothing is there and hence, it is a
case of 302 of IPC and not 304B of IPC.
18. Undisputedly, the conviction is solely based on
the dying declaration-Ex.P.29. The law with regard to
conviction and sole basis of dying declaration has been
considered by the Hon'ble Apex Court in the catena of
judgments, considering the earlier judgment of Apex Court
reported in (2010) 9 Supreme Court Cases 1 in case of
Atbir V/s Government of NCT of Delhi, in case of
Naeem V/s Uttarpradesh reported in (2024) 17 SCC
735, Suresh V/s State represented by Inspector of
Police reported in (2025) 4 SCC 794. The Hon'ble Apex
- 24 -
NC: 2026:KHC:10405-DB
HC-KAR
Court in case of Atbir V/s State has laid down factors to be
taken into consideration while convicting on the basis of
dying declaration wherein the Hon'ble Apex Court in
paragraph No.13 and 14 held that
" 13. We have carefully considered the
rival contentions and perused the relevant
materials. Among the various contentions
raised by both sides, major part relates to two
legal submissions:
a) Admissibility and reliability of the dying
declaration made by Sony @ Savita before the
investigation officer.
b) Whether death sentence insofar as Atbir and life
sentence insofar as Ashok is warranted.
(A) Dying declaration
14. It is true that in the case on hand,
conviction under Section 302 was based solely
on the dying declaration made by Sonu @
Savita and recorded by the investigating officer
in the presence of a doctor. Since we have
already narrated the case of the prosecution
which led to three deaths, eliminating the
- 25 -
NC: 2026:KHC:10405-DB
HC-KAR
second wife and the children of one Jaswant
Singh, there is no need to traverse the same
once again. This Court in a series of decisions
enumerated and analysed that while recording
the dying declaration, factors such a mental
condition of the maker, alertness of mind and
memory, evidentiary value, etc. have to be
taken into account. "
19. The dying declaration can be sole basis for the
conviction if it inspires the full confidence of the Court and
we have satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was
not the result of tutoring, prompting or imagination. We
are also satisfied that the dying declaration made by the
deceased is true and voluntary and consistent. The Trial
Court has rightly convicted the appellant based on the
dying declaration and the oral testimony.
20. The Apex Court in several cases also held that
dying declaration and its appreciation and whether
conviction solely based on dying declaration and while
discussing the same it is held in the Judgment reported in
- 26 -
NC: 2026:KHC:10405-DB
HC-KAR
(2010) (68) ACC 308 (SC) in case of Jayabalan V/s
U.T. of Pondicherry, Bijoy Das V/s State of West
Bengal reported in (2008) 4 SCC 511, MuthuKutty V/s
State of U.P reported in (2005) 9 SCC 113, Ravi V/s
State of Tamilnadu reported in (2004) 10 SCC 776,
P.V.Radhakrishna V/s State of Karnataka reported in
(2003) 6 SCC 443 held that dying declaration is an
important piece of evidence u/s 32(1) of Evidence Act and
if a dying declaration is found to be true and voluntary and
is not a result of tutoring or prompting or a product of
imagination then there is no need for corroboration by any
witness and conviction can be recorded on its basis alone.
But in the case on hand, P.W.11 and P.W.12 have
categorically deposed that victim made the statement in
their presence.
21. Even the Apex Court in the judgment reported
in AIR 2017 SC 2161 in case of Mukesh Vs. State for
NCT of Delhi & Others, the three judge bench also held,
even with regard to the recording of the same by
- 27 -
NC: 2026:KHC:10405-DB
HC-KAR
videographing the same, held that it is not mandatory and
recording of the same is only a measure of caution and in
the absence of videography also, dying declaration would
not be fatal to the case of the prosecution and cannot be
discarded. But, in the case on hand, P.W.12 has recorded
the same in her mobile that too in the presence of P.W.11.
Both P.W.11 and P.W.12 reiterated that the same was
videographed and not disputed the same during the
course of their cross-examination. Thus, the evidence of
P.W.11 and P.W.12 is consistent and reliable.
22. In the judgment of the Apex Court in the Larger
Bench of Five Judges in the case of Laxman V/s State of
Maharashtra reported in (2002) 6 SCC 710, it is held
that even presence of Magistrate at the time of recording
dying declaration not required and further held that oath
to declarant also not required and it is further held that
form of dying declaration is also not necessary and even
verbal dying declaration can be made and the dying
declaration by signs and gestures also could be made and
- 28 -
NC: 2026:KHC:10405-DB
HC-KAR
certificate of doctor regarding mental fitness of declarant
of dying declaration is also not required.
23. In the judgment of Apex Court reported in AIR
2016 SC 3209 in the case of Raju Devade V/s State of
Maharashtra held that mere absence of certificate of
Doctor would not render the dying declaration unreliable
particularly when the doctor was not present in the
hospital at the relevant time.
24. Having taken note of the principles laid down in
the judgments referred supra, it is a fit case to rely upon
the same that too in a case of sole dying declaration. We
therefore, no reason to interfere with the finding of the
fact that dying declaration at Ex.P29 is true and free from
any effort to induce the decision to make a false
statement and dying declaration is coherent and
consistent.
25. The counsel appearing for the appellant would
contend that this Court has to take note of Section 304B
of IPC and also this appellant was in custody during the
- 29 -
NC: 2026:KHC:10405-DB
HC-KAR
course of trial and this Court can invoke 428 of Cr.P.C and
give set-off and enlarge the appellant and the said
submission cannot be accepted when the Trial Court
comes to the conclusion that it is a case of 302 of IPC and
also a case of pouring the kerosene and setting the fire on
the wife and as a result, she has sustained burn injuries
and succumbed to the injuries and question of only
considering the offence under Section 304B of IPC cannot
be accepted and it is a clear case of Section 302 of IPC.
However, Trial Court fails to take note of no material in
respect of Section 304B of IPC is concerned and the same
requires to be set-aside and imposing of sentence of 10
years also requires to be set-aside and hence, we answer
the point accordingly.
26. In view of the discussions made above, we pass
the following:
ORDER
i) The Criminal Appeal is allowed in
part.
- 30 -
NC: 2026:KHC:10405-DB
HC-KAR
ii) The judgment of conviction and
sentence passed in S.C.No.119/2017
for the offence under Section 304B of
Indian Penal Code is set-aside. The
judgment of conviction and sentence
for the offence under Section 302 of
Indian Penal Code is confirmed.
iii) If any fine deposited in respect of
offence under Section 304B of IPC
ordered to refund the same on proper
identification.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
AM,RHS,SN
List No.: 2 Sl No.: 1
