Jayamma vs Home Department on 7 May, 2021


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Supreme Court of India

Jayamma vs Home Department on 7 May, 2021

Author: Surya Kant

Bench: Hon’Ble The Justice, Surya Kant

                                                                          REPORTABLE


                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION


                                  CRIMINAL APPEAL No. 758 OF 2010


       Jayamma & Anr.
                                                                       ..... Appellant(s)

                                                VERSUS

       State of Karnataka                                              ..... Respondent


                                                 WITH


                                  CRIMINAL APPEAL No. 573 of 2016



       Lachma s/o Chandyanaika & Anr.
                                                                       ..... Appellant(s)

                                                VERSUS

       State of Karnataka                                             ..... Respondent



                                              JUDGMENT

Surya Kant, J:

Signature Not Verified
These Criminal Appeals, which have been heard through video
Digitally signed by
Vishal Anand
Date: 2021.05.07
19:41:46 IST
Reason:

conferencing, are directed against the common judgment dated

Page | 1
29.07.2008 passed by the High Court of Karnataka at Bangalore

whereby the findings of the trial Court were reversed and after

setting aside the appellants’ acquittal, they have been convicted for

offence punishable under Section 302 read with Section 34 of the

Indian Penal Code, 1860 (“IPC”) and consequently sentenced to life

imprisonment.

FACTS

2. The parties in the present case are closely related. The case of

the prosecution is that there was a long-standing animosity between

the families of Jayamma wife of Reddinaika (Appellant No.1) and

Jayamma wife of Sanna Ramanaika (deceased) and in connection

thereto, a quarrel took place on 10.09.1998 in which,

Thippeswamynaika son of the deceased assaulted and injured

Reddinaika (Husband of Appellant No.1). Thereafter the appellants

allegedly went to the house of the deceased on 21.09.1998 and

confronted her about the assault on Reddinaika. The appellants

demanded Rs. 4,000/- for the cost incurred on the medical treatment

of Reddinaika. After a heated exchange of words, the appellants

allegedly doused the deceased-Jayamma in kerosene and set her on

fire. Specific roles have been attributed to all the appellants in

Page | 2
respect thereto. Upon hearing the wails of Jayamma, her other son

Ravi Kumar (PW-2) and daughter-in-law Saroja Bai (PW-5; wife of

Thippeshi or Thippeswamynaika) came to the spot and tried to

extinguish the fire. The appellants meanwhile ran away from the

spot. Since Jayamma was seriously injured, PW-2 sought help from

Kumaranaika (PW-3) to shift Jayamma to the hospital. PW-2 and PW-3

then took the injured-Jayamma on a bullock cart to Primary Health

Centre (P.H.C.), Thalak and there Dr. A. Thippeswamy (PW-16)

provided primary treatment to the injured-Jayamma, including,

administering her certain pain killers. Dr. A. Thippeswamy (PW-16)

sent medico-legal case information to the Thalak Police Station, and

on receipt thereof, SHO K.V. Mallikarjunappa (PW-11) reached the

hospital and recorded the statement of the injured Jayamma (Ex. P-

5) in the presence of PW-16. Jayamma in her statement implicated

all the appellants. On the basis of the said statement, Crime No. 101

of 1998 was registered at the Thalak Police Station under Sections

504, 307, 114 read with Section 34 of IPC. Owing to the seriousness

of injuries, the victim was later shifted to Government Hospital,

Chitradurga. However, on 23.09.1998 at 5:30 AM, Jayamma

succumbed to her injuries.

3. Upon being notified about the death of Jayamma, the Police

sent a requisition to the Court, requesting that offence under Section

Page | 3
307 read with Section 34 IPC be altered to offence under Section 302

read with Section 34 IPC. ASI J. Sanjeeva Murthy (PW-14) thereupon

visited the Hospital and conducted the inquest. The body was sent

for post mortem examination and a report was made by Dr. Sunil

Chowhan (PW-19), wherein, it was opined that Jayamma died of

shock due to extensive burn injuries. Thereafter, the police visited

the spot, drew the mahazar and made certain seizures in the

presence of Rameshnaika (PW-1) and Eshwarnaika (PW-15). During

the course of further investigation, PSI Chandrahas Naik (PW-13) and

CPI Shankar (PW-18) recorded the statements of witnesses and

arrested the appellants. Appellant No.1, however, was able to obtain

anticipatory bail and was, thus, released after her arrest.

4. After the completion of investigation and filing of charge-sheet,

the case was committed to the court of Additional Sessions Judge at

Chitradurga. Charges were framed under Sections 504, 302, 114

read with Section 34 IPC against the appellants, to which they

pleaded not guilty and claimed trial. The prosecution examined

nineteen witnesses and thirteen documents to establish the guilt of

the accused. The case of the appellants, as recorded in their

statements under Section 313 of the Code of Criminal Procedure,

1973 (“CrPC”) was one of total denial. No defense evidence was led

by them.

Page | 4

5. During the course of trial, several prosecution witnesses turned

hostile. PW-2, son of the deceased, put forward an alternative chain

of events wherein he claimed that the deceased committed suicide

because she couldn’t bear the fact that her son Thippeswamynaika

was arrested and sent to jail for beating husband of the 1 st appellant.

PW-2 further stated that the deceased was unable to speak after the

incident. In a similar vein, daughter-in-law of the deceased (PW-5)

also contradicted the prosecution version and denied any knowledge

as to how the deceased died. Regarding the arrest of her husband

Thippeswamynaika, PW-5 disputed the fact that any quarrel had

taken place on 10.09.1998 and claimed that she was not aware of

the reason behind her husband’s arrest. PW-1 and PW-15 who are

mahazar witnesses also did not support the prosecution case; they

denied being called by the Police and stated that nothing was seized

in their presence. The only material witnesses who supported the

prosecution version were PW-11 (K.V. Mallikarjunappa) and PW-16

(Dr. A. Thippeswamy). They deposed that the statement of the

deceased (Ex.P-5), accusing the appellants for the murderous attack

on her was genuine and voluntary.

6. Since it was not in dispute that Jayamma died due to burn

injuries, the crucial question before the trial Court was whether the

death was suicidal or homicidal. The trial Court noted that the sole

Page | 5
material on record to connect the accused persons with the offence

of murder was the statement of the deceased Ex.P5, which was

being treated as a dying declaration. The prosecution heavily

banked upon the said statement in order to prove the guilt of the

accused. However, upon considering the mitigating circumstances

such as testimonies of the hostile witnesses, nature of burn injuries

of the victim, and the lack of any corroborative evidence, the trial

Court was of the opinion that the prosecution had failed to prove the

genuineness of Ex.P5 beyond all reasonable doubt. The evidence of

PW-11 and PW-16 who had supported the prosecution case was

found to be vague and unsatisfactory. Consequently, the Court held

that the prosecution had failed to discharge its onus and acquitted

the appellants.

7. The High Court in appeal reversed the findings of the trial Court

and held that the evidence consisting of dying declaration was

clinching and sufficient to bring the guilt home. While several

arguments appear to have been raised on behalf of the appellants,

the High Court brushed aside the same, plainly stating that no

credence could be attached to the testimonies of the hostile

witnesses. The High Court instead placed emphasis on the

testimonies of PW-11 and PW-16 who had corroborated the contents

of the dying declaration (Ex.P-5). The High Court found no good

Page | 6
ground to disbelieve either the testimonies of PW-11 and PW-16, or

the contents of the dying declaration (Ex.P-5), and reversed the

acquittal awarded by the trial court. The appellants were

consequently convicted under Section 302 read with Section 34 IPC

and sentenced to life imprisonment.

8. Discontented with the order of the High Court, the appellants

have assailed their conviction and sentence through these two

criminal appeals. Since the High Court has summed up its

conclusions by way of a brief order, we deem it appropriate to

reproduce the two relevant paragraphs no.4 and 6 of its impugned

judgment which are to the following effect:-

“4. On through consideration we find that although the material
witnesses PWs.2 and 5 have turned hostile, the evidence placed by
the prosecution by way of dying declaration is very much clinching.
PW 11 recorded statement and testified the fact of recording
statement at Ex.P­5 and his evidence also discloses that it was
recorded in the presence of the doctor PW16 and the doctor has
given endorsement at Ex.P­5©. He has also deposed that the
deceased was in a fit state of mind and she gave the statement
voluntarily which was recorded by PW11 in his presence. The
contents of Ex.P­5 implicates all the accused for causing murder with
common intention.

xxx xxx xxx

6. On thoroughly going through the documents, we find that no
credence could be attached to the evidence of the witnesses who
have turned hostile. PW16 is an independent witness. The evidence
of PW 16 discloses that the deceased made a statement at Ex.P­5

Page | 7
and it is voluntarily and that she was in a fit state of mind to give
her statement. The evidence of PW 11 shows that he recorded
statement in the presence of PW16 and Ex.P­5 contains the
endorsement of the doctor. There is no good reason to disbelieve the
version of PWs. 1 (sic) and 16 and the contents of Ex.P­5. The
autopsy report discloses that the death is on account of burn injuries
which corroborates the e=contents (sic) of Ex.P­5. In view of the
above, we find that the acquittal is bad in law and hence, the same
is set aside. In the result we pass the following order:
The appeal is allowed. Accused Nos. 1 to 4 are convicted for an
offence punishable under Section 302 read with Section 34 of IPC.
The accused persons are sentenced to life imprisonment.”

CONTENTIONS

9. We have heard learned counsels for the parties at considerable

length and perused the record in-depth. The principal contentions

raised on behalf of the appellants are that the High Court’s order is

totally cryptic and it erroneously reversed the well-reasoned order of

acquittal passed by trial Court. Relying upon a catena of decisions of

this Court including in the cases of Chandrappa v. State of

Karnataka1, Perla Somasekhara Reddy and Others v. State of

A.P.2, State of Rajasthan v. Shera Ram3, Shyam Babu v. State

of Uttar Pradesh4, Murugesan v. State5, Mookkiah v. State6,

1
(2007) 4 SCC 415.

2

(2009) 16 SCC 98.

3

(2012) 1 SCC 602.

4

(2012) 8 SCC 651.

5

(2012) 10 SCC 383.

6

(2013) 2 SCC 89.

Page | 8
and Shivasharanappa v. State of Karnataka7, it was urged that

the High Court while interfering with an order of acquittal was under

an onerous duty to scrutinize the evidence on record, and should

return a categorical and cogent finding as to why it was impossible

to sustain the order of the trial Court or why it deserved interference.

It was contended that neither did the High Court evaluate the entire

evidence nor it dealt with the specific findings of the trial Court, and

as such, the High Court failed to discharge its obligation under

Section 378 CrPC. It was further argued that in the facts and

circumstances of the present case, Ex. P-5 i.e., the purported dying

declaration cannot form the sole basis to convict the appellants.

Relying upon the decision of this Court in Surinder Kumar v. State

of Haryana8, it was canvassed that since the document Ex.P-5 was

shrouded with doubtful circumstances, the same cannot be acted

upon to be the solitary basis for conviction in the absence of any

corroboration. Learned Counsel also drew our attention to

Paparambaka Rosamma & Ors v. State of A.P.9 and argued that

in the absence of a medical certificate attesting to mental fitness of

the deceased before recording of the dying declaration, the High

Court ought not to have placed any reliance upon Ex.P-5. It was then

7
(2013) 5 SCC 705.

8

(2011) 10 SCC 173, ¶ 25, 26 & 28.

9

(1999) 7 SCC 695 ¶ 8,9 &12.

Page | 9
submitted that the High Court overlooked the fact that the

prosecution has miserably failed to establish any motive in the

present case and, thus, conviction of the appellants was untenable.

10. Per Contra, learned State Counsel supported the conviction

awarded by the High Court. He drew our attention to paragraphs 4

and 6 of the impugned order to suggest that the High Court had not

only given a well-reasoned judgment but also buttressed it with

specific reasons, warranting interference in the order of acquittal.

Reliance was placed on Vijay Pal v. State (Government of NCT of

Delhi)10 in order to contend that even in cases of hundred percent

burn injuries, the Courts can rely upon the dying declaration to

convict the accused.

ANALYSIS

11. In light of the rival contentions, the following questions fall for

our consideration.

A. Whether the High Court erred in reversing the findings of

the trial Court in exercise of its powers under Section 378 of the

CrPC?

B. Whether the prosecution has successfully established that

the deceased died a homicidal death at the hands of the

appellants?

10

(2015) 4 SCC 749.

Page | 10

12. It may be seen that the entire case revolves around the

evidentiary value of the purported dying declaration dated 22.09.1998

(Ex.P­5). The High Court has heavily relied upon it along with the

corroborative statements of K.V. Mallikarjunappa (PW­11), who is the

police officer who recorded Ex.P­5, and of Dr. A. Thippeswamy (PW­

16), who was present at the time of recording the dying declaration

and also endorsed the mental fitness of the deceased to make such

statement. It thus appears useful to reproduce the translated version

of the said dying declaration (Ex.P­5) which reads as follows:­

“I have been residing at the above given address. Today
after having food, I was sleeping in front of my house near
Kurukoppa, in the night at 10.00 pm a resident of our village
Reddy Nayak and his wife Jayamma, came near our
Kurukoppa and complained that since my son had beaten
her husband, she has spent four thousand rupees and
scolded in filthy language. I was keeping quite at that time.
All of a sudden Jayamma, wife of Reddy Nayak, Laccha
Nayaka, son of Chandra Nayak, Thippeshi, son of Rama
Naika, Shankara Nayaka, son of Namya Nayka all of them
advanced towards her and threatened to kill her, and poured
kerosene oil all over her body and torched. Therefore, I have
sustained burn injuries over my hands and entire body.
When I started shouting, the Accused ran away from the
spot. My son Ravi, son of Rama Nayaka, and my daughter
Sharadamma, wife of Mallenayaka poured water all over my
body, doused the fire, and my son Ravi and my daughter
Sharadamma took me to Taluk Hospital in a cart for
treatment. I pray for taking suitable action against the
Accused as provided in law.”

Page | 11

13. It is most relevant to mention at this stage that we have also

perused the original dying declaration (in Kannada language). The

original dying declaration begins with the statement of the injured,

which is purportedly based upon the questions asked by the police

officer (PW­11), and right below the statement, there is the thumb

impression of injured (deceased). Immediately below there are

signatures of the police officer (PW­11) who recorded the dying

declaration in his own hand writing. Since very less space was left on

the page, Dr. A. Thippeswamy (PW­16) has on the left side of the paper

written a line in broken words which goes from south­west to north­

east, endorsing that the “Patient was in a sound state of mind at the

time.” In the leftover available space on the right hand side, the police

officer (PW­11) has remarked that the statement was recorded by him

on 22.09.1998 in the night at 1.15 am in Thalak Hospital and

thereafter he came to the police station and registered a case crime

no.101/1998 under Sections 504, 307 read with 34 IPC. These

remarks by PW­11 are written in a different ink, and it further appears

that PW­11 also used the same pen to make a ‘small correction’ in the

original dying declaration, i.e., some words, written in a different ink,

have been inserted between two lines of the dying declaration.

Page | 12

14. Before we advert to the actual admissibility and credibility of the

dying declaration (Ex.P­5), it will be beneficial to brace ourselves of the

case­law on the evidentiary value of a dying declaration and the

sustenance of conviction solely based thereupon. We may hasten to

add that while there is huge wealth of case law, and incredible

jurisprudential contribution by this Court on this subject, we are

consciously referring to only a few decisions which are closer to the

facts of the case in hand. We may briefly notice these judgments.

A. In P.V. Radhakrishna. v. State of Karnataka11, this Court

considered the residuary question whether the percentage of burns

suffered is a determinative factor to affect the credibility of a dying

declaration and the probability of its recording. It was held that there

is no hard and fast rule of universal application in this regard and

much would depend upon the nature of the burn, part of the body

affected, impact of burn on the faculties to think and other relevant

factor.

B. In Chacko v. State of Kerala12, this Court declined to accept

the prosecution case based on the dying declaration where the

deceased was about 70 years old and had suffered 80 per cent burns.

11

(2003) 6 SCC 443 ¶ 16.

12

(2003) 1 SCC 112 ¶ 3, 4.

Page | 13
It was held that it would be difficult to accept that the injured could

make a detailed dying declaration after a lapse of about 8 to 9 hours of

the burning, giving minute details as to the motive and the manner in

which he had suffered the injuries. That was of course a case where

there was no certification by the doctor regarding the mental and

physical condition of the deceased to make dying declaration.

Nevertheless, this Court opined that the manner in which the incident

was recorded in the dying declaration created grave doubts to the

genuineness of the document. The Court went on to opine that even

though the doctor therein had recorded “patient conscious, talking” in

the wound certificate, that fact by itself would not further the case of

the prosecution as to the condition of the patient making the dying

declaration, nor would the oral evidence of the doctor or the

investigating officer, made before the court for the first time, in any

manner improve the prosecution case.

C. In Sham Shankar Kankaria v. State of Maharashtra 13, it

was re­stated that the dying declaration is only a piece of untested

evidence and must like any other evidence satisfy the Court that what

is stated therein is the unalloyed truth and that it is absolutely safe to

act upon it. Further, relying upon the decision in Paniben v. State of

13
(2006) 13 SCC 165 ¶ 10, 11.

Page | 14
Gujarat14 wherein this Court summed up several previous judgments

governing dying declaration, the Court in Sham Shankar Kankaria

(Supra) reiterated::­

“(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. (See
Munnu Raja v. State of M.P
.[(1976) 3 SCC 104]);

(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985)
1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1
SCC 211]);

(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants
and was in a fit state to make the declaration. (See K.
Ramachandra Reddy v. Public Prosecutor
[(1976) 3 SCC
618]);

(iv) Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence. (See Rasheed
Beg v. State of M.P
. [(1974) 4 SCC 264]);

(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it is
to be rejected. (See Kake Singh v. State of M.P. [1981 Supp
SCC 25]);

(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. (See Ram Manorath v. State of
U.P
. [(1981) 2 SCC 654]);

(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. (See State
14
(1992) 2 SCC 474 ¶ 18.

Page | 15
of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp
SCC 455]);

(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (See Surajdeo Ojha v. State
of Bihar
[1980 Supp SCC 769]);

(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make the dying declaration, the medical
opinion cannot prevail. (See Nanhau Ram v. State of
M.P
. [1988 Supp SCC 152]);

(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC
390]);

(xi) Where there are more than one statement in the nature of
dying declaration, one first in point of time must be preferred.
Of course, if the plurality of dying declaration could be held
to be trustworthy and reliable, it has to be accepted.

(See Mohanlal Gangaram Gehani v. State of
Maharashtra [(1982) 1 SCC 700])”

15. It goes without saying that when the dying declaration has been

recorded in accordance with law, and it gives a cogent and plausible

explanation of the occurrence, the Court can rely upon it as the

solitary piece of evidence to convict the accused. It is for this reason

that Section 32 of the Evidence Act, 1872 is an exception to the

general rule against the admissibility of hearsay evidence and its

Clause (1) makes the statement of the decease admissible. Such

Page | 16
statement, classified as a “dying declaration” is made by a person as to

the cause of his death or as to the injuries which culminated to his

death or the circumstances under which injuries were inflicted. A

dying declaration is thus admitted in evidence on the premise that the

anticipation of brewing death breeds the same human feelings as that

of a conscientious and guiltless person under oath. It is a statement

comprising of last words of a person before his death which are

presumed to be truthful, and not infected by any motive or malice. The

dying declaration is therefore admissible in evidence on the principle

of necessity as there is very little hope of survival of the maker, and if

found reliable, it can certainly form the basis for conviction.

16. We may also take note of the decision of this Court in the case of

Surinder Kumar (Supra). In the said case, the victim was admitted in

hospital with burn injuries and her dying declaration was recorded by

an Executive Magistrate. This Court, first doubted whether the victim

could put a thumb impression on the purported dying declaration

when she had suffered 95­97 per cent burn injuries. Thereafter, it was

noted that “at the time of recording the statement of the

deceased…….no endorsement of the doctor was made about her

position to make such statement”, and only after the recording of

Page | 17
the statement did the doctor state that the patient was conscious

while answering the questions, and was “fit to give statement”. This

Court lastly noticed that before the alleged dying declaration was

recorded, the victim in the course of her treatment had been

administered Fortwin and Pethidine injections, and therefore she

could not have possessed normal alertness. It was hence held that

although there is neither a rule of law nor of prudence that the dying

declaration cannot be acted upon without corroboration, the Court

must nonetheless be satisfied that the dying declaration is true and

voluntary, and only then could it be the sole basis for conviction

without corroboration.

17. Consistent with the cited principles, this Court refused to uphold

the conviction in the case of Sampat Babso Kale and Another v.

State of Maharashtra15. The dying declaration in that case was

made by a victim who had suffered 98 percent burn injuries, and the

statement was recorded after the victim was injected with painkillers.

This Court adopted a cautious approach, and opined that there were

serious doubts as to whether the victim was in a fit state of mind to

make the statement. Given the extent of burn injuries, it was observed

that the victim must have been in great agony, and once a sedative

15
2019 (4) SCC 739 ¶ 14, 16.

Page | 18
had been injected, the possibility of her being in a state of delusion

could not be completely ruled out. Further, it was specifically noted

that “the endorsement made by the doctor that the victim was in

a fit state of mind to make the statement has been made not

before the statement but after the statement was recorded.

Normally it should be the other way around.”

[emphasis supplied]

18. We may now proceed to evaluate the evidentiary value of

purported dying declaration (Ex.P­5). As noticed earlier, the son and

daughter­in­law of the deceased, their neighbour and other witnesses

from the vicinity, have resiled and not supported the prosecution case.

Only two material witnesses are left out, one being police officer K.V.

Mallikarjunappa (PW­11) who is the author of the dying declaration,

the investigating officer and the prosecutor. The second, and more

crucial witness, is Dr. A. Thippeswamy (PW­16), who was working in

the P.H.C., Thalak at the relevant time. As per his deposition, the

statement of the injured was taken in front of him and the patient was

in a sound state of mind at that time. PW­16 was the one who had

informed the police regarding admission of Jayamma (the deceased

victim) in the hospital, and in his cross­examination, he has admitted

Page | 19
that painkillers were given immediately after admission. He has

acknowledged that in a case of fourth degree burns the patient will be

“delirious and in a period of confusion”. He has not denied that due to

painkillers there was bound to be drowsiness. He has also not denied

that “hand, body was fully burnt” and that “hand includes the fingers”.

He has candidly owned up that the police did not take his written

permission before recording the statement.

19. As regard to the version of K.V. Mallikarjunappa (PW­11), he has

deposed that he was the SHO of police station on the night when he

received a phone call from Taluka Government Hospital at about

12:45 a.m. He went to the hospital and noticed Jayamma with burn

injuries. According to him the doctor examined her and said that “she

was in a position to talk”, then the statement of Jayamma was taken

in the presence of the doctor and after he put in his signatures, the

medical officer also endorsed and signed it. In his cross­examination,

PW­11 has stated that “Jayamma’s son, daughter­in­law and one other

person was also present….”. He has, however, admitted that no

written permission was sought or taken before recording the

statement of the injured and that he “questioned Jayamma ­ the

injured, as to how it happened. Then she narrated about the

incident………. Jayamma ­ the injured, narrated the details of the

Page | 20
accused persons. The thumb impression was taken since the said finger

was not burnt”

20. It is a matter of record that Ravi Kumar (PW­2), son of the

deceased has been evasive as to who brought the injured to the

hospital. Rest of the prosecution case has also been denied by him.

Even, Saroja Bai (PW­5) daughter­in­law of the deceased, has

completely repudiated the prosecution case. This set of evidence does

not indicate or support the prosecution case that the injured was in a

position to speak or narrate the incriminating events of the incident

before or after she was rushed to the hospital. Their version runs

contrary to the statement of Dr. A. Thippeswamy (PW­16) and the

police officer K.V. Mallikarjunappa (PW­11).

21. The litmus test, therefore, is whether the victim made the

statement (Ex.P­5) and if so, whether such statement can be the

solitary foundation for conviction of the appellants?

22. Having meditated over the issue to the extent it is possible, and

on a minute examination of the original document Ex.P­5 (without

understanding its contents as it is in Kannada language except that

the endorsement of the doctor is in English) read with its true

translation placed on record, we do not find it totally safe to convict

Page | 21
the appellants on the basis of the said document alongwith its

corroboration by PW­11 and PW­16. We say so for several reasons as

summarised hereinafter:

Firstly, the narration of events in the dying declaration is so accurate,

that even a witness in the normal state of mind, cannot be expected to

depose with such precision. Although it is stated that deceased was

questioned by the Police officer, the purported dying declaration is not

in a questions and answers format. The direct or indirect dominance

of the Police Officer appears to have influenced the answers only in

one direction.

Secondly, the injured victim was an illiterate old person and it

appears beyond human probabilities that she would have been able to

narrate the minutes of the incident with such a high degree of

accuracy.

Thirdly, there is sufficient evidence on record that the victim had

been administered highly sedative painkillers. Owing to 80% burn

injuries suffered by the victim on all vital parts of the body, it can be

legitimately inferred that she was reeling in pain and was in great

agony and the possibility of her being in a state of delusion and

hallucination cannot be completely ruled out. We say so at the cost of

Page | 22
repetition that the doctor (PW­16) made the endorsement that the

victim was in a fit state of mind to make the statement ‘after’ the

statement was recorded and not ‘before’ thereto — being the normal

practice. It further appears to us that faculties of the injured had

been drastically impaired and instead of making statement in an

informative form she had apparently endorsed what the Police Officer

(PW­11) intended to. True it is that the Police Officer (PW­11) had no

axe to grind or a motive to implicate the appellants, but his over­

enthusiasm to solve a criminal case within no time seems to have

swayed the Police Officer (PW­11) so much that he appears to have not

asked the doctor to make an endorsement of fitness of the victim

before recording the statement. He also did not deem it appropriate to

call a Judicial or Executive Magistrate to record such statement, for

the reasons best known to himself.

Fourthly, there is a serious contradiction between the statement of

Dr. A. Thippeswamy (PW­16) on one hand and the police officer K.V.

Mallikarjunappa (PW­11) on the other, in respect of the nature of burn

injuries suffered on different body parts of the victim. While the doctor

acknowledges that burn injuries included the hands of the victim, the

police officer claims that her hands were safe and she could put her

thumb impression. We have seen the thumb impression very

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scrupulously and the same appears to be absolutely natural. If that is

so, the medical officer, whose statement should carry more weightage

in respect of the nature and gravity of injuries, stands belied.

Fifthly, and most importantly the police officer K.V. Mallikarjunappa

(PW­11) candidly admits that he did not seek an endorsement from

the doctor as to whether the injured was in a fit state of mind to make

a statement, before he proceeded to record the statement. Both the

police officer as well as the doctor have tried to cover up this serious

lacuna by referring to the purported oral endorsement of the doctor. It

appears that the police officer was in full command of the situation

and with a view to fill up the legal lacuna, he later on secured the

endorsement from the doctor (PW­16) on the available space of the

paper, which is ex­facie unusual and not in line with settled legal

procedure.

Sixthly, the alleged motive for the homicidal death is highly doubtful.

There is not an iota of evidence, and the prosecution has made no

effort to verify the truth in the statement that the appellants poured

kerosene and lit the victim on fire only because her son had assaulted

the husband of Appellant No.1 and the accused were insisting on

payment of Rs.4,000/­ which was spent on the treatment of the said

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assault–victim. Not much can be said when the deceased’s own son

and daughter­in­law have denied this incident and rather claimed that

their mother/mother­in­law committed suicide.

The Seventh reason to dissuade us from harping upon Ex.P­5 is the

conduct of the parties, i.e., a natural recourse expected to happen.

Had it been a case of homicidal death, and the victim’s son (PW­2) and

her daughter­in­law (PW­5) had witnessed the occurrence, then in all

probabilities, they would have, while making arrangement to take the

injured to hospital, definitely attempted to lodge a complaint to the

police. Contrarily, the evidence of the doctor and the police officer

suggest that while the son, daughter­in­law and neighbour of the

deceased were present in the hospital, none approached the police to

report such a ghastly crime. It is difficult to accept that the son and

daughter­in­law of the deceased were won over by the accused

persons within hours of the occurrence. This unusual conduct and

behaviour lends support to the parallel version that the victim might

have committed suicide.

The Eighth reason which makes us reluctant to accept the contents

of purported dying declaration (Ex. P-5), is the fact that victim,

Jayamma was brought to the Civil Hospital at 12.30 a.m. on

22.09.1998. She succumbed to her burn injuries after almost 30

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hours later at 5:30 am on 23.09.1998. It is neither the case of

prosecution nor has it been so stated by PW-11 or PW-16 that soon

after recording her statement (Ex. P-5) she became unconscious or

went into coma. The prosecution, therefore, had sufficient time to

call a Judicial/Executive Magistrate to record the dying declaration. It

is common knowledge that such Officers are judicially trained to

record dying declarations after complying with all the mandatory

pre-requisites, including certification or endorsement from the

Medical Officer that the victim was in a fit state of mind to make a

statement. We hasten to add that the law does not compulsorily

require the presence of a Judicial or Executive Magistrate to record a

dying declaration or that a dying declaration cannot be relied upon

as the solitary piece of evidence unless recorded by a Judicial or

Executive Magistrate. It is only as a rule of prudence, and if so

permitted by the facts and circumstances, the dying declaration may

preferably be recorded by a Judicial or Executive Magistrate so as to

muster additional strength to the prosecution case.

23. The other important reason to depart from the High Court’s

view re. conviction of the appellants is that the power of scrutiny

exercisable by the High Court under Section 378, CrPC should not be

routinely invoked where the view formed by the trial court was a

‘possible view’. The judgment of the trial court cannot be set aside

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merely because the High Court finds its own view more probable,

save where the judgment of the trial court suffers from perversity or

the conclusions drawn by it were impossible if there was a correct

reading and analysis of the evidence on record. To say it differently,

unless the High Court finds that there is complete misreading of the

material evidence which has led to miscarriage of justice, the view

taken by the trial court which can also possibly be a correct view,

need not be interfered with. This self-restraint doctrine, of course,

does not denude the High Court of its powers to re-appreciate the

evidence, including in an appeal against acquittal and arrive at a

different firm finding of fact.

24. If the case in hand is evaluated on these parameters, it may be

seen from paragraphs 4 and 6 of its order that the High Court dealt

with the appeal against acquittal summarily and did not even discuss

the ocular evidence, especially of the son and daughter-in-law of the

deceased, who have, to some extent, belied the version of the doctor

(PW-16) or the investigating officer (PW-11). We say so for the reason

that according to Ravi Kumar (PW-2), son of the deceased, the victim

Jayamma had lost consciousness and was unable to speak at the

time when she was rushed to the hospital in a bullock cart arranged

by Kumaranaika (PW-3). Without discarding or disbelieving such

statement(s), it is difficult to accept that injured — Jayamma was in a

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fit state of mind at 1:15 a.m. when the alleged dying declaration was

recorded. Her state of mind can be well imagined due to the

combined effect of the trauma and the administration of painkillers.

The High Court, on the other hand, relied upon the dying declaration

(Ex.P-5) as the same was purportedly corroborated by the

statements of doctor (PW-16), and the police official (PW-11) who

authored the document (Ex.P-5). Such a conclusion, in our

considered opinion, is totally erroneous and based upon misreading

of the evidence on record. It has already been noticed that according

to the doctor (PW-16), the victim had suffered 80% injuries including

on her hands. As against it, the Police Officer (PW-11) claims that

there were no burn injuries on the hand of the victim, hence she

could put her left thumb impression on the dying declaration (Ex.P-

5). These glaring contradictions should not have gone unnoticed by

the High Court.

25. At this juncture, we may also delve into the nature of motive

attributed to the appellants. The document (Ex. P-5) itself recites

that son of the injured-deceased, Thippeswamynaika, had beaten the

husband of Appellant No. 1 and the appellants had statedly incurred

medical expenses to the tune of Rs. 4,000/- which they demanded

from the injured-deceased and then they doused kerosene and set

her on fire. In the absence of any provocation from the side of

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injured, the cause itself being so trivial in nature and the factum of

causing any injuries to the husband of Appellant No. 1 having been

expressly denied by the daughter-in-law of the deceased, namely,

Saroja Bai (PW-5), coupled with the fact that there is no evidence

whatsoever to prove that any such incident took place, we are

satisfied that the so-called motive has not been proved at all and the

declaration Ex. P-5, thus, recites a non-existent incident.

26. The Additional Session Judge, Chitradurga in his judgment

dated 30.11.2001 formulated point no. 1 as to whether the

prosecution was able to prove beyond all reasonable doubt that the

accused persons with an intention to kill Jayamma went to her house

and picked up a quarrel in connection with a previous dispute and

then doused her with kerosene and set her ablaze. The Additional

Sessions Judge extensively examined the entire evidence and after

reaching to the conclusion that all the witnesses of the motive or the

occurrence have resiled and declared hostile, he was left with the

residuary question to decide as to whether the death was suicidal or

homicidal. He, thereafter, considered the dying declaration (Ex. P-5)

threadbare and critically analysed the statements of the police

officer (PW-11) and the doctor (PW-16). The factors like (i)

interpolation in the dying declaration Ex.P-5, (ii) contradiction in the

statements of PW-11 and PW-16 regarding injuries on the palm, (iii)

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the victim with 80% injuries was apparently not in a situation to talk

or give statement, (iv) PW-2, son of the deceased himself has stated

that his mother committed suicide as she could not bear that her

another son had been sent to jail, (v) there being no corroborative

evidence to the statement Ex.P-5, and (vi) there is no other evidence

led by the prosecution to connect the appellants with the crime

except the statement Ex.P-5, he held it unsafe to convict the

appellants on the solitary basis of the dying declaration (Ex. P-5).

27. We fully endorse the view taken by the learned trial court. The

reasons which we have assigned in paragraph 22 of this Order are

sufficient to cast clouds on the genuineness of the prosecution case.

We find it difficult to uphold the conviction only on the basis of the

dying declaration Ex. P-5.

28. Consequently, and for the reasons aforestated, both the

appeals are allowed. The impugned order dated 29.07.2008 of the

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High Court is set aside and the appellants are set free. Since, they

are already on bail, their bail bonds are discharged.

………………………….. CJI.

………..………………… J.

(SURYA KANT)

……………………………J.

(ANIRUDDHA BOSE)
NEW DELHI
DATED :07.05.2021

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