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Supreme Court of India
Jayamma vs Home Department on 7 May, 2021Author: 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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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.
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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.”
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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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