w w w . L a w y e r S e r v i c e s . i n



Rajegowda @ Guruswamy & Another v/s State of Karnataka, Rep. by its State Public Prosecutor, Bangalore & Another


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    Criminal Appeal Nos. 409, 896 of 2015

    Decided On, 23 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA & THE HONOURABLE MR. JUSTICE E.S. INDIRESH

    For the Appearing Parties: Y.S. Shivaprasad, Advocate, Vijayakumar Majage, Additional State Public Prosecutor.



Judgment Text

(Prayer: This Criminal Appeal is filed Under Section 374(2) of the Code of Criminal Procedure, 1973, praying to set aside the order dated 4.3.2015, passed by the Principal District and Sessions Judge, Hassan, in S.C. No.190/2013 convicting the Appellant/Accused for the Offences Punishable Under Section 302 of IPC.This Criminal Appeal is filed Under Section 377 of the Code of Criminal Procedure, 1973, praying to modify the judgment and order dated 4.3.2015 passed in S.C. No.190/2013 by the Principal Sessions Judge, Hassan in so far as it relates to not imposing fine amount on the Respondent-Accused for the offence under Section 302 IPC; impose fine amount on the Respondent-Accused for the offence punishable under Section 302 IPC in Accordance with Law.)Veerappa, J.1. Criminal Appeal No.409 of 2015 is filed by the accused against the judgment and order of conviction and sentence dated 04.03.2015 made in S.C.No.190 of 2013 on the file of the Principal Sessions Judge, Hassan, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and Criminal Appeal No.896 of 2015 is filed by the State, only insofar as non imposition of fine on the accused for the aforesaid offence, which is mandatory.I. FACTS OF THE CASE2. It is the case of the prosecution that P.W.1- Chandrashekara, lodged a complaint with the police stating that, he had two sons and deceased A.C.Yathisha is the elder one. On 03.04.2013, Yathisha left the house to Hassan at about 12.00 pm. When the complainant called him, Yathisha told that he is still in Hassan. Since he did not return home even at 7.00 pm, again, the complainant called Yathisha over phone, who informed that the accused had assaulted him with club stating that he is having illicit relationship with wife of the accused and dragged him to the garden and assaulted him with the chopper. On hearing the same, C.Ws.1 to 7 went to the spot and found that Yathisha had sustained injuries all over the body. Immediately, they shifted Yathisha to the Government Hospital, Sakaleshapura, where, on examination, the Doctor declared that Yathisha had already died and therefore, the complainant lodged the complaint against the accused.3. On the basis of the complaint of P.W.1, the jurisdictional police conducted the investigation and filed charge sheet against the accused, before the Civil Judge and JMFC, Sakaleshapura. The learned Judge committed the case to the Sessions Court, Hassan, under Section 209 of the Code of Criminal Procedure. On hearing both the parties, the learned Sessions Judge framed charge against the accused for the offence punishable under Section 302 of the Indian Penal Code. The same was read over and explained to the accused, who pleaded not guilty and claimed to be tried.4. In order to prove its case, the prosecution examined 22 witnesses as P.Ws.1 to 22 and marked the documents Exs.P.1 to 14 as well as the material objects M.Os.1 to 6. After completion of the evidence on behalf of the prosecution, the statement of the accused was recorded by the Court under Section 313 of the Code of Criminal Procedure. The accused denied incriminating circumstances made out in the evidence of the prosecution witnesses against him. The accused neither lead evidence nor marked any documents.5. The learned Sessions Judge, based on the aforesaid pleadings, framed two issues for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the death of Yathisha is homicidal and prosecution proved beyond all reasonable doubt that on 03.04.2013 at 6.00 pm on the road near the house of the accused and coffee estate of Murthy of Doddanahalli, Yeslur Hobli, Sakaleshapura Taluk, Hassan District, with an intention of committing the murder, the accused inflicted fatal injuries to Yathisha by assaulting him with deadly weapon-club and consequently, Yathisha succumbed to the injuries on the way to the Government Hospital and thereby, the accused committed an offence punishable under Section 302 of the Indian Penal Code. Accordingly, the learned Sessions Judge, by the impugned judgment and order of conviction and sentence dated 04.03.2015, sentenced the accused to undergo rigorous imprisonment for life. Hence, the accused has filed Criminal Appeal No.409 of 2015 to set-aside the impugned judgment and order of conviction and sentence. The State has filed Criminal Appeal No.896 of 2015 for non imposition of fine on the accused, while convicting him under Section 302 of the Indian Penal Code.6. We have heard the learned counsel for the parties to the lis.II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ACCUSED7. Sri Y.S.Shivaprasad, learned counsel for the accused contended that the impugned judgment and order of conviction and sentence passed by the Trial Court is without any basis and the same is liable to be set-aside. He contended that, the entire case of the prosecution is based on the alleged oral dying declaration made by the deceased to the P.W.1, over telephone. The call details of the deceased and the P.W.1 are not produced. He further contended that the present case is based on the circumstantial evidence of P.Ws.1 to 9, who are highly interested and hear say witnesses, which cannot be relied upon to convict the accused, without there being chain link to prove that the accused is involved in the murder of the deceased. The deceased Yathisha was not in a conscious condition to say anything to his father - P.W.1, in view of the evidence of the Doctor-P.W.19, who has stated that, the deceased sustained open wound in the occipital region towards left side. No clarification is sought from the Doctor as to whether the deceased was able to give any statement in that condition. Therefore, the alleged oral dying declaration of the deceased, set-up by the prosecution on the basis of the complaint-Ex.P.1 lodged by the P.W.1 cannot be accepted.8. The learned Counsel for the accused further contended that it is the specific case of P.W.1 in the complaint that the accused, first assaulted on the hand of the deceased with club and thereafter, dragged him to the garden and assaulted him with a chopper on the backside of the head. Admittedly, chopper used for the offence has neither been seized by the Investigating Officer, nor it is marked. It is the theory created by P.W.1 and on the basis of the said theory of the prosecution, the accused cannot be convicted. Learned counsel further contended that the mobile phones of P.W.1 and the deceased were neither seized nor marked by the Investigating Officer. Further, no villager where the incident occurred has been examined. The alleged eye witness P.W.12 has turned hostile to the case of the prosecution. The prosecution has not examined the wife of the accused to prove the illicit relationship of the deceased with the wife of the accused and she has not been cited as witness to the investigation. On that ground alone, the impugned judgment and order of conviction and sentence is liable to be set-aside.9. Learned Counsel for the accused further contended that in the cross-examination, P.W.1 has admitted that, "he has not mentioned his mobile number and that he has not mentioned the mobile number of his son in the complaint. He used to enquire the whereabouts of his son through his mobile." Admittedly, as stated supra, the said mobiles have not been seized by the police. He has further stated that it took 45 minutes for him to reach the spot, after receiving the phone call and M.O.5-club was not recovered at the instance of the accused, as the same was found in the canal and not in the exclusive possession of the accused and the same has been admitted by P.W.22.10. He further contended that the prosecution has not sent M.O.5 to the experts to find out as to whether the said club was used by the accused for commission of the offence. No blood stains or mud was recovered from the spot and sent to Forensic Science Laboratory (FSL) to identify whether the said blood belonged to the deceased. No oral and documentary evidence is produced by the prosecution to prove that the deceased was in a state of fit mind to make oral dying declaration to P.W.1 and other prosecution witnesses. In the absence of the same, evidence of P.W.1 and other prosecution witnesses cannot be relied upon. He further contended that no question was put to the accused with regard to Ex.P.14-FSL report, as contemplated under Section 313 of the Code of Criminal Procedure. Therefore, Ex.P.14, FSL report cannot be relied upon.11. The learned Counsel for the accused further contended that absolutely there is no material produced by the prosecution to prove beyond reasonable doubt that the accused is involved in the homicidal death of the deceased. Therefore, he sought to allow the Criminal Appeal filed by the accused.12. In support of his contentions, learned Counsel for the accused sought to rely on the following Judgments.(i) State of UP vs. Raj Bahadur reported in (1993)1 Crl.LJ 86, para-40;(ii) Natha vs. State of Madhya Pradesh reported in (2003) 1 Crimes 502, oral dying declaration, para-14;(iii) Harka Bahadur Rai vs. State of West Bengal reported in (2005)4 CHN 77, para-9,11 and 16;(iv) Ram Adhin @ Ramdin @ Charaka vs. State of Chhattisgarh made in CRA No.441/2014 (DB) dated 03.01.2017 para-12;(v) Prakash vs. State of Karnataka reported in (2014)3 KCCR 2473 (SC) head note D and E, para-55, 61, 66, 70 and 73;(vi) Bikash Koiri vs. State of Tripura reported in 2014 Crl.LJ 186 Tripura HC, para-40,46 and 48;(vii) Ganesh Datt vs. State of Uttarakhand reported in 2014 Cri.L.J 3128 (SC) Investigation Lapse, para-14, 15, 18, 19, 20 and 21.III - AGRUMENTS ADVANCED BY THE LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR13. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment and order of conviction contended that in view of the evidence of the doctor - P.W.19, it is a clear case of homicidal death and her evidence is corroborated by the evidence of P.Ws.1 to 7 and 11. It is his specific contention that the doctor in his cross- examination has denied the suggestion that the deceased died due to the injuries sustained in the road traffic accident and has further deposed that the cause of such injury may be possible, if a person plies the vehicle in a rash and negligent manner and hits a tree.14. The learned Additional SPP would further contend that, P.Ws.1 to 7 and 11 have categorically deposed that the deceased Yathisha had made oral dying declaration before them. P.W.1-the father of the deceased has specifically deposed that on 3.4.2013 he had waited for his son till 7.00 p.m., but his son did not return home. So he called his son, who informed him that, since the accused had assaulted him very badly, he is lying in Doddanahalli near coffee estate belonging to Murthy and hence, he asked him to rush immediately. So P.W.1, his paternal uncle's son - Hemanthkumar along with four villagers rushed to the spot in Omni car where they noticed only bike, but his son was not found. Immediately, he called to his son's mobile and though the mobile was ringing, no one was receiving the call. Thereafter following the ring tone of the mobile, they found his son-deceased lying with full of injuries. When he enquired his son, he told that the accused had assaulted him with a stick and he had sustained grievous injuries on his head and forearm. The same is the version of P.Ws.3, 4, 5, 6 and 7 which clearly indicates that the deceased had made oral statement before P.Ws.1, 3, 4, 5, 6, 7 and 11. Therefore, he contended that, the prosecution has proved beyond all reasonable doubt that the accused has committed homicidal death of the deceased.15. The learned Additional SPP would further contend that, in the inquest report Ex.P.4, at Question No.3, with regard to who has seen the dead body first, when and where? it is submitted that Chandrashekar- complainant has last seen the deceased on 3.4.2013 at 8.00 p.m. He would further contend that with regard to recovery of M.Os.5 and 6 - club and shirt of the accused by P.W.22 - Dinesh - the Investigating Officer, has deposed that, during the course of investigation, it was clear that the accused has committed the murder of the deceased which was homicidal in nature. With regard to Ex.P.14 - the FSL report, he has deposed that on 28.6.2013, he had collected the FSL report and filed the charge sheet before the jurisdictional Magistrate. He had identified the FSL report and with his consent, it is marked as Ex.P.14. In his cross-examination, he has denied the suggestions that the accused has not given voluntary statement before him; he has forcibly taken his signature on voluntary statement; that they neither produced the club and shirt before him; nor recovered any motorcycle from the spot. Therefore, he contended that the prosecution has clearly proved its case beyond all reasonable doubt that the accused has committed the offence punishable under Section 302 of IPC., and therefore, sought to dismiss the appeal filed by the accused and to allow the appeal filed by the State for non-imposition of fine while sentencing him for life imprisonment.16. In support of his contentions, the learned Additional SPP relied upon the following dictums of the Hon'ble Supreme Court:i) Parbin Ali and Another -vs- State of Assam reported in (2013) 1 SCC 841 paragraphs 11 to 21;ii) Yunis Alias Kariya -vs- State of M.P. reported in (2003) 1 SCC 425 paragraph 7; andiii) Laxman -vs- State of Maharashtra reported in (2002) 6 SCC 710(Constitutional Bench) paragraph-3 with regard to dying declaration.IV - THE POINTS FOR DETERMINATION17. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, points that arise for our consideration in the present criminal appeals are:i) Whether the accused has made out a case to interfere with the impugned judgment and order of conviction under the provisions of Section 302 of IPC, sentencing him to undergo imprisonment for life in exercise of powers under the provisions of Section 374(2) of Cr.P.C., in the facts and circumstances of the present case?ii) Whether the State-prosecution has made out a case to interfere with the impugned judgment and order of conviction for non imposition of fine as mandated under the provisions of Section 302 of IPC., while imposing sentence for life?18. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records carefully.19. The sum and substance of the entire case of the prosecution is that the deceased-Yathisha had illicit relationship with the wife of the accused and in that view, on 3.4.2013 at about 6.00 p.m., when the deceased was proceeding in a bike near Shettihalli, the accused restrained him from proceeding further and assaulted him with a club on his head, hands and all over the body. The deceased Yathisha had informed the said fact over phone to the P.W.1 complainant, who shifted the deceased to the Sakaleshpura Government Hospital. The doctor on examination of the deceased declared that he was already dead. Therefore, a case came to be registered against the accused for the offence punishable under Section 302 of IPC. The accused in his voluntary statement recorded under Section 313 Cr.P.C., has denied in toto the case of the prosecution.20. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and documents relied upon.21. P.W.1-Chandrashekara - father of the deceased, who has lodged the complaint as per Ex.P.1, has deposed that he is having two children by name Yathisha and Satish. On 3.4.2013 his son - deceased Yathisha had been to Hassan for getting his motor cycle serviced. He had left the village at about 9.00 a.m. and at about 12.00 noon, the deceased had called to his mobile informing that he has left the motor cycle for service. Again when he had called him at about 4.00 p.m., his son informed him that he is in Hassan and he would return home within 6.00 p.m. So he had waited for his son till 7.00 p.m., but his son did not return home. When he called him, his son informed him that the accused had assaulted him very badly and he is lying in Doddanahalli, near Coffee Estate belonging to Murthy and should rush immediately. Therefore, he, his paternal uncle's son - Hemanthkumar along with four villagers rushed to the spot in Omni car, where they noticed only bike, but his son was not found. Immediately, he called to his son's mobile. Though it was ringing, no one was receiving the call. Hence, after following the ring tone of the mobile, they found his son lying there with grievous injuries on his head and forearm. When he enquired his son, he informed him that accused assaulted him with a stick. He has further stated that the complaint is marked as Ex.P.1, his signature as Ex.P.1(a). The inquest mahazar was drawn by the police in the hospital as per Ex.P.2 and his signature was obtained as per Ex.P.2(a). He also has identified the bike which was recovered and marked as M.O.1 and a photograph of which is marked as Ex.P.3. He also has identified the blood stained clothes of the deceased i.e., shirt, pant and underwear which are marked as M.Os.2 to 4. In his cross-examination, he has specifically stated that his deceased son was an agriculturist; the distance between his village and Hassan is 75 kms., and the vehicle recovered belongs to his son. He has further deposed that his son had taken the vehicle for service station situated in Thanneruhalla. He has admitted that he has not mentioned his or his son's mobile number in the complaint and he used to enquire his son everyday about his whereabouts through his mobile; He has also admitted that before reaching the spot, he came to know that, who had assaulted his son. It was only 45 minutes time to reach the spot after receiving phone call. He has denied the suggestions that his son had sustained injuries in the accident; his son was bleeding and he is falsely implicating the accused in this case and the accused had not assaulted his son.22. P.W.2 - Hemanthakumar, who is the brother of P.W.1 has deposed that he knew the accused, complainant and the deceased Yathisha. On 3.4.2013 at about 7.00 p.m., P.W.1 - Chandrashekara had called him and informed that the accused had assaulted his son, who is lying injured near Rajegowda's house, immediately he, Chandrashekar, Satish, Sada and Rathan went to the spot in his Maruthi Omni Van which was driven by him. They went to Doddanahalli near Rajegowda's house and saw the motor cycle lying down. They did not find the deceased. Immediately, P.W.1 called the deceased through his mobile phone and as they heard the mobile phone ringing, they followed the ring tone of the mobile where they found the deceased was lying with full of grievous injuries on his head and forearm. When P.W.1 enquired his son, he informed him that the accused had assaulted him with a stick. They then shifted him to the hospital at Sakaleshapura and on the way, the deceased died due to the injuries sustained by him. He has identified M.O.1 bike, M.Os.2 to 4 blood stained clothes and his statement was recorded by the Police. In his cross-examination, he has deposed that he and his brother - Chandrashekar had been to Doddanahalli via Yadavanahalli and it took about 1 hour 45 minutes to reach the spot. He has admitted that scene of offence is situated in between coffee plant; when they reached the spot, the deceased was bleeding heavily. He has denied the suggestion that the deceased sustained injuries due to the accident and when they reached there, the deceased was already dead.23. P.W.3 - A.P. Rathan, who is a villager of P.W.1's (Hattiganahalli) village has deposed that P.W.1 - Chandrashekara had called him and informed that the accused had assaulted his son and his son was lying injured near Rajegowda's house. Immediately, they went to the spot and shifted the injured to the hospital at Sakaleshapura and on the way, the deceased died due to the injuries sustained by him. Reiterating the evidence of P.W.1, he has further deposed that P.W.2 - Hemanthkumar informed him that the accused had assaulted the deceased Yathisha, who is from their village. When they enquired one shop keeper about the whereabouts of the bike, the shop keeper had shown them the spot and saw that the blood was oozing from the head of the deceased. They lifted the deceased and put him in the Maruthi Van and in that process, his clothes were stained with blood and has not given the said clothes to the police. He has also not stated before the police that his clothes were smeared with blood. He has denied the suggestion that when they reached the spot, the deceased was already dead. He had deposed that P.Ws.1 and 2 belonged to his village. He has specifically denied the suggestions that the deceased was already dead before they reached the spot and the fact that the deceased died due to the accident. Further he has stated that P.Ws.1 and 2 belong to his village.24. P.W.4 - Harishkumar, who is the resident of Atthiganahalli has deposed that P.W.1 - Chandrashekara had called him and informed him that the accused had assaulted his son, who is lying injured near Rajegowda's house. He is the panch witness to the scene of offence as per Ex.P.2 - spot mahazar and his signature is marked as Ex.P.2(b). He is also panch witness to the seizure of motorcycle as per seizure mahazar Ex.P.5 and his signature is marked as Ex.P.5(a). In his cross-examination, he has admitted that both P.W.1 - Chandrashekar and P.W.2 - Hemanthkumar belong to his village.25. P.W.5 - Sada, who is also from the same village of P.W.1, has reiterated the version of P.W.1. In his cross-examination he has deposed that he along with others had lifted the deceased and put him in the Maruthi Van and during that process, his clothes also got blood stained, but he has not given them to the police. In his cross-examination, he has denied the suggestion that the deceased died due to the accident.26. P.W.6 - Sathish, who is also from P.W.1's village, has deposed that P.W.1 - Chandrashekar informed him that the accused had assaulted his son and he is lying injured near Rajegowda's house. He has further deposed that when they went to the spot, they saw deceased lying with full of grievous injuries on his head and forehand and when P.W.1 enquired his son, he told that the accused had assaulted him with a stick. Thereafter, they shifted him to the hospital at Sakleshapura, but on the way, the deceased died due to the injuries sustained by him. He has also identified the motorcycle - M.O.1 and blood stained clothes i.e., M.Os.2 to 4. In his cross-examination, he has denied the suggestion that the deceased died due to the accident.27. P.W.7-Vishvas, an agriculturist of the same village of P.W.1 reiterating the version of P.W.1 has deposed that, when they were shifting the deceased to the hospital, on the way, he died due to the injuries sustained in the assault and on the way to the hospital, the deceased had informed him that the accused was saying that since he was having affairs with his (accused) wife, he had threatened the deceased to do away his life and thereafter, the accused took the stick and assaulted him. Therefore, the deceased has died due to the injuries suffered by him. He has also identified the motor cycle - M.O.1; blood stained clothes- M.Os.2 to 4 and the police have recorded his statement. In his cross-examination, he has denied the suggestion that the deceased died due to the road accident.28. P.W.8 - Kumara, one of the panch witness to the inquest panchanama - Ex.P.4 has identified his signature as per Ex.P.4(c). In his cross-examination, he has denied the suggestion that he does not know the contents of Ex.P.4 - the inquest panchanama and as per the statement of the police, he is giving false evidence.29. P.W.9 - Renuka, who is also one of the panch witnesses, has deposed that the police had drawn the inquest panchanama in her presence and she has noticed the injuries on the head, back and shoulder of the deceased. She came to know that the accused had assaulted the deceased with club, as a result of which, the deceased had succumbed to the injuries. In her cross-examination, she has denied the suggestions and prior to her arrival to the hospital, the inquest panchanama was drawn and she is giving false evidence. She has admitted that she has not seen the incident and as per the statement of complainant, she had given the statement to the police.30. P.W.10 - Teertha, who is also one of the witnesses to the inquest panchanama has deposed that he had noticed injuries on the head, back and shoulder of the deceased. Police had drawn the inquest panchanama in his presence. He had given the statement to the police that he came to know that the accused had assaulted the deceased with club as a result of which the deceased succumbed to the injuries. In his cross-examination, he has admitted that he has not seen the incident and as per the say of the complainant, he is giving the statement to the police.31. P.W.11 - Kantharaju, who is also a witness to the spot mahazar has deposed on par with the evidence of P.W.1. He has stated that when they arrived at the spot, the deceased was lying there with full of injuries and grievous injuries on his head and forearm. The deceased informed him that the accused assaulted him with a stick. In his cross-examination, he has denied the suggestion that the deceased died due to the road accident.32. P.W.12 - Lakshmamma has specifically stated that she does not know anything about the accused and she has turned hostile to the case of the prosecution.33. P.W.13 - Sathisha, bother of the deceased Yathisha and son of P.W.1 - complainant has deposed on par with the evidence of his father - P.W.1 and has supported the case of the prosecution. In his cross- examination, he has stated that his brother Yathisha called his father at 7.00 p.m. and at that time, his father was in the house. Omni van belonged to his paternal uncle. His father P.W.1 and others went to the spot through Konabanahalli, Vodalahalli and reached the spot which was 10 kms distance from his house. They reached the spot between 7.30 to 7.40 p.m. and there were more trees existing on the spot. He has admitted the suggestion that before reaching the spot, they came to know who had assaulted his brother and further that there was 45 minutes time to reach the spot after receiving the phone call. He has denied the suggestion that his brother - the deceased, died due to the road accident.34. P.W.14 - Dharmappa, who is the witness to the seizure panchanama Ex.P.8, has identified his signature at Ex.P.8(a) and clothes of the deceased as M.Os.2 to 4. In his cross-examination, he has deposed that he has not received any notice from the police. Police have produced the clothes of his brother. He has denied the suggestion that at the time when the panchanama was drawn, he was not present.35. P.W.15 - Kuberappa is also one of the panch witnesses to the seizure mahazar Ex.P.8 and has identified his signature at Ex.P.8(b) and clothes of the deceased as M.Os.2 to 4. In his cross-examination, he has stated that he has not received any notice from the police. He has denied the suggestions that the police have not seized the clothes of the deceased; that he was not present at the time of drawing up of panchanama and as per the instructions of the police, he is deposing falsely.36. P.W.16 - Venkatesh, Assistant Engineer, Public Works Department, Sakaleshapura, who has prepared the sketch - Ex.P.9 of the scene of offence has identified his signature in the sketch as Ex.P.9(a) and has deposed that he had handed over the sketch to the Investigating Officer. In his cross-examination, he has denied the suggestions that he had not visited the scene of offence; drawn the sketch in his office as per the directions of the police and he is deposing falsely.37. P.W.17 - H.B. Nagaraja, who is the friend of P.W.1 and witness to the seizure mahazar - Ex.P.10, has put his signature at Ex.P.10(a) with regard to seizure of M.O.5 club, and clothes of the accused as M.O.6. He has deposed that the accused had confessed that he had assaulted the deceased with M.O.5 and as on the date of the incident, he was wearing M.O.6. In his cross-examination, he has categorically admitted that the complainant is his friend, police had not issued any intimation to him. He has denied the suggestions that the police had not taken him to the house of the accused and accused did not produce M.Os.5 and 6.38. P.W.18 - Anandagowda, who is another friend of P.W.1 and also witness to the seizure mahazar Ex.P.10, has identified his signature as Ex.P.10(b), Club as M.O.5 and shirt of the accused as M.O.6. He has deposed that the accused had confessed before him that he had assaulted the deceased with M.O.5 and on the date of the incident, he was wearing M.O.6. In his cross-examination, he has deposed that complainant is his friend and police have not given any intimation. He has denied the suggestions that the police had not taken him to the house of the accused and accused did not produce M.Os.5 and 6.39. P.W.19 - Dr. H.G. Nagaraj, who conducted the autopsy on the dead body of the deceased and has given postmortem report as per Ex.P.11, has deposed that the mole was found on the left side of the chest; rigor mortis present in the hands; he had noticed external injuries such as deep lacerated wound in a right parietal region measuring 3 x 1.5 cms and open wound in occipital region towards left side measuring 5 x 4 x 3 x 2 cms and contusions below the right eye measuring 2 x 0.6 cms in right eye brow measuring 1 x 0.5 cms. Lacerated wound below the right lower eyelid measuring 2 x 0.5 cms., and contusions in right arm and abrasion in right arm and open wound in right lower 1/3rd of forearm. Contusion in left shoulder and lacerated wound. He came to know that the body was of A.C. Yathisha and he conducted the postmortem from 11.10 a.m. to 12.10 p.m. After postmortem, he has come to the conclusion that the cause of death was due to shock and hemorrhage as a result of head injury. He has also deposed that injuries on the dead body can be caused, if a person assaults by using M.O.5 and those injuries might cause the death. In his cross-examination, he has deposed that such injuries are possible, if a person plies the vehicle in a rash and negligent manner and hits a tree. He has given his opinion with regard to M.O.5 and he has not affixed his signature on M.O.5. He has denied the suggestions that he is deposing falsely and the deceased died due to the injuries sustained in the road traffic accident.40. P.W.20 - Louise, Head Constable of Sakaleshapura Rural Police Station has deposed that on 23.5.2013, Circle Inspector of Police had handed over the material objects to him with an instruction to hand over it to Forensic Science Laboratory (FSL). Accordingly, he has handed over five sealed articles to the FSL, Mysore.41. P.W.21 - Venkatesh C., Station House Officer, who registered the first information on the basis of the complaint lodged by P.W.1 as per Ex.P.1 in Crime No.50/2013 has sent the FIR to the jurisdictional Magistrate as per Ex.P.12 and he has put his signature at Ex.P.12(a). He handed over the further investigation to the investigating officer as per Ex.P.1 wherein he has put his signature at Ex.P.1(b). In his cross- examination, he has denied the suggestion that he is deposing falsely.42. P.W.22 - Dinesh Patil, who was appointed as the Investigating Officer and has conducted the investigation has filed the charge sheet against the accused. He has deposed that he has drawn the inquest panchanama of the dead body of the deceased Yathisha in the mortuary of Sakaleshapura Government Hospital in the presence of three witnesses P.Ws.2, 3 and 9 as per Ex.P.4 and his signature is marked as Ex.P.4(d). He has recorded the statement of C.Ws.10 and 11 and on the same day in the evening in between 4.30 and 5.30 p.m., he visited the scene of offence and drawn the scene of offence panchanama. He recovered the motor cycle under seizure mahazar Ex.P.2 and marked the vehicle as M.O.1. He took the photograph - Ex.P.3 and put his signature in Ex.P.2 which is marked as Ex.P.2(b). On 7.4.2013, he apprehended the accused and recorded the voluntary statement of the accused as per Ex.P.13 and has put his signature at Ex.P.13(b). As per the voluntary statement of the accused, they went along with the accused to his house where the accused produced one club- M.O.5 and blood stained shirt - M.O.6. He drew the seizure mahazar as per Ex.P.10 and has put his signature at Ex.P.10(c). He has further deposed that he recorded the statement of C.W.17 and produced the accused before the jurisdictional Court and released the motorcycle as per the directions of the jurisdictional Magistrate. He has further deposed that he collected the postmortem report on 8.5.2013, FSL report on 28.6.2013 which is marked as Ex.P.14, and completed the investigation and filed the charge sheet before the jurisdictional Magistrate. In his cross- examination, he has denied the suggestions that the accused had not given any voluntary statement before him and has neither produced club nor shirt before him.V - THE FINDINGS RECORDED BY THE LEARNED SESSIONS JUDGE43. Based on the aforesaid evidence relied upon by the prosecution and material documents, the learned Sessions Judge has recorded a finding that the evidence of P.Ws.1 to 22 clearly shows that the deceased himself has stated before P.W.1 that it was the accused, who assaulted him and hence, there exists motive. The accused has killed the deceased because the deceased had illicit relation with the wife of the accused. The entire case of the prosecution rests on the oral dying declaration. All the eye witnesses have supported the case of the prosecution except P.W.12, who has turned hostile. Therefore, the case rests either on the oral dying declaration and the circumstantial evidence. It is observed that in case where the evidence is of circumstantial in nature, the circumstances from which the conclusion of the guilt is to be drawn in the first instance should be fully established and all the facts should be consistent only with the hypothesis of the guilt of the accused. Again the circumstance should be of a conclusive nature and tendency, and they should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete that there should not be any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is further recorded that the evidence of P.W.1 goes to show that on the way to the hospital, his son told him that the accused assaulted him as he was having affairs with his wife which version is supported by the evidence of P.Ws.2, 3, and 13 with minor variations. Therefore, the contentions of the defence Counsel that oral dying declaration said to have been given is only to the relative witness or interested witnesses and hence, the Court cannot convict the accused only on that basis. It was also recorded that nothing has been suggested to these witnesses about the condition of deceased except making suggestion that the deceased had already died when they reached the spot. No explanation is also coming from the defence as to why these witnesses are falsely implicating the accused, what was the enmity between the accused and P.W.1. Therefore, it was difficult to accept that the father, brother and other villagers are falsely implicating this accused by attributing a false oral dying declaration of the deceased and apart from this, in the absence of any real discrepancy or material contradiction or omission from these witnesses in this regard, makes the dying declaration absolutely credible. It is further recorded that the FSL report reveals the blood stains found on the shirt of the victim - M.O.4 and the shirt of the accused - M.O.6 is of 'B' Group and the blood group of the victim is 'B' Group. No explanation has come forth from the defence as to how the blood stains of the victim had come on the shirt of the accused. Even while recording the statement of the accused under the provisions of Section 313 Cr.P.C., the accused has not given any explanation. Therefore, as per the provisions of Section 105 of the Evidence Act, the burden is on the accused to explain how the blood stains were found on his shirt.44. The learned Sessions Judge further has held that the prosecution has proved the death of the deceased as homicidal on the basis of postmortem report issued by the doctor P.W.19 - Dr. Nagaraj, who has opined that the cause of death is due to shock and hemorrhage as a result of head injury and reading of the postmortem report makes it crystal clear that the accused had the intention to kill the deceased. The act of the accused inflicting head injury was sufficient in the ordinary cause of nature to cause death and he had the knowledge that the said act was so imminently dangerous that it would, in all probability, cause the death or head injury as is likely to cause death. The learned Sessions Judge taking into consideration the provisions of Section 300 IPC has observed that the accused had the knowledge, which implies consciousness of a further contingency when he assaulted on the head of the deceased and in all probability, he would die. Therefore, on the basis of Ex.P.11 the postmortem report, the learned Sessions Judge has come to the conclusion that the accused has committed the high degree of culpability while committing heinous act and the prosecution has proved the guilt of the accused based on oral dying declaration coupled with the corroborative evidence of P.Ws.1, 2 to 7 along with the medical evidence and accordingly, convicted the accused.VI - CONSIDERATION45. There are no eye witnesses in the present case and the entire case of the prosecution is based on the oral dying declaration of the deceased and the circumstantial evidence. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the Court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. However, the evidence regarding existence of motive which operates in the mind of an assassin is very often, not within the reach of others. In a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime.46. It is well settled that there is no embargo on the Appellate Court while exercising the powers under the provisions of Section 374(2) of the Code of Criminal Procedure for reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. Keeping the aforesaid principles in mind, it is relevant to consider the material on record.47. The substance of the complaint as per Ex.P1 is that on 3.4.2013 in the evening, when the deceased was on his way in a bike from Shettihalli to their village, near Doddanahalli, the accused stopped the deceased and abused him that he had illicit relationship with his wife and assaulted him with club and thereafter dragged him to the garden and removed the chopper from the waist and assaulted on the backside of his head and further, damaged his bike and the said acts might have been done at about 6.30 p.m. i.e., 30 minutes prior to PW.1 speaking with the deceased over phone. In the examination-in-chief, PW.1 has stated that he received the call from his son stating that the accused has assaulted him with a stick and he sustained grievous injuries on his head and forearm. In the cross-examination, PW.1 has admitted that he has not mentioned his mobile number as well as mobile number of the deceased in the complaint and he used to enquire his son everyday about his whereabouts through his mobile.48. Admittedly, the Investigating Officer has not seized the mobile phones of PW.1 and the deceased, nor produced any call details to know whether first of all his son went to Hassan for effecting service to his motorcycle and it is also not forthcoming as to whether the deceased called PW.1 at 6.30 p.m. Though the learned SPP/Prosecution tried to persuade this Court that on account of the illicit relationship between the wife of the accused and the deceased, the incident happened, but admittedly the wife of the accused has not been examined. The material on record clearly depicts that the distance between the villages of the accused and the deceased is about 10 kilometers. It is not forthcoming as to what prompted the deceased and the wife of the accused to have illicit relationship, when they are not residents of the same village and when they are not relatives nor classmates and it is not known how a mother of the two children (wife of the accused) had illicit relationship with the deceased, aged about 25 years. There is no material produced by the prosecution with regard to proximity of the deceased and the wife of the accused. Admittedly, the villagers of the accused so also the villagers of the deceased have not been examined to know the real truth about the illicit relationship between the deceased and wife of the accused. The said basic aspect of the entire prosecution case has not been considered by the learned Sessions Judge. Apart from the said material evidence ignored by the learned Sessions Judge, the averments of the complaint depict that the accused has assaulted the deceased with 'chopper' on the backside of his head and also assaulted his hand with club when the deceased was riding the bike. Though PWs.1, 2 to 7 have supported the case of the prosecution, they are highly interested witnesses and they have improved their versions in their evidence, thereby they consistently stated that the accused assaulted the deceased with the club on his hand and head. Thereby, the averments in the complaint do not corroborate with the evidence of PW.1 and PWs.2 to 7. The said omissions and contradictions are not at all considered by the learned Sessions Judge.49. It is further case of the prosecution that when PW.1 and other prosecution witnesses went to the spot, the deceased informed PW.1 that the accused assaulted him with club MO.5 on his head and hand and all over the body. In the cross-examination, PW.1 has admitted that he received call from the deceased at about 7.00 p.m. and they reached the spot at about 7.30 to 7.40 p.m. It is further stated by PW.1 in the cross- examination that there was 45 minutes time to reach the spot after receiving the phone call. The same was also spoken to by Satisha - PW.13 (younger brother of the deceased/son of PW.1) in the cross-examination. According to the complaint, the accused assaulted the deceased with chopper at about 6.30 p.m. and according to the evidence of PWs.1 and 13, to reach the spot, it will take 45 minutes. PWs.3 and 5 stated in the cross-examination that the blood was oozing from the head of the deceased and PWs.9 and 10 stated in the examination-in-chief that due to the assault, the deceased sustained injuries and died. PW.9 has admitted that it is true that she has not seen the incident. Admittedly, the prosecution has not seized the chopper alleged to have been used by the accused to assault the deceased on his head as per the complaint. Therefore based upon the aforesaid inconsistent evidence of the prosecution witnesses and the material documents relied upon, the finding given by the learned Sessions Judge that it is homicidal death caused by the accused, cannot be accepted.50. The learned SPP contended that the entire case is based on the oral dying declaration of the deceased, as spoken to by PW.1 and PWs.2 to 11, who stated on oath in the categorical terms that the deceased has informed before his death to his father (PW.1) that the accused has assaulted him with club - MO.5 on his head and hand and consequently died. Only based on the dying declaration of the deceased, the trial Court is not justified in convicting the accused for the simple reason that as already stated above, the prosecution failed to produce any oral and documentary evidence with regard to proximity of the wife of the accused and the deceased to have illicit relationship as alleged in the complaint. Secondly, according to PWs.3 and 5, the blood was oozing from the head of the deceased during the relevant point of time. According to PWs.1 and 13, the deceased informed to him about the assault at 7.00 p.m. According to PWs.1 and 13, it will take minimum 45 minutes to reach the spot. Therefore, it clearly indicates PW.1 and PW.13 - Satish and other prosecution witnesses went to the spot after 1 hour 15 minutes of the assault. If the blood was oozing from the head of the deceased as spoken to by PWs.3 and 5, it is doubtful as to whether the deceased was alive when PW.1 and others reached the spot after 1 hour 15 minutes. The prosecution has not produced any materials to prove that the deceased was alive when PW.1 and others reached the spot.51. Much reliance is placed by the prosecution as well as the learned SPP about the dying declaration. No doubt, the dying declaration can be made before the relative or eye-witness or before the Magistrate or the Police Officer or the doctor. The fact remains that, when the blood was oozing from the head of the deceased, can he give statement after 1 hour 15 minutes, has to be looked into. Though Pws.1 and 2 to 7 in the categorical terms stated that the deceased has informed his father that the accused assaulted him with stick on his hand and head and all over the body, none of the witnesses including PWs.1 and 2 to 7 and 11 have whispered either in the examination-in-chief or in the cross-examination that the deceased was in "fit state of mind" to make statement, which is mandatory in view of the provisions of Section 32 of the Indian Evidence Act and the dictums of this Court and the Hon'ble Supreme Court time and again. On that ground also, the oral dying declaration alleged to have been made by the deceased is doubtful and benefit of doubt has to be given to the accused. The said material has not at all been considered by the learned Sessions Judge.52. It is very interesting to note that the entire prosecution case is based on the illicit relationship of the deceased with the wife of the accused and on oral dying declaration made through phone by the deceased to PW.1. Admittedly, the mobile phones of the deceased and PW.1 are not at all seized nor produced call details. There is lapse on the part of the investigating authorities, who ought to have conducted investigation strictly in accordance with law. The prosecution also relies on the inquest report, recovery of MOs.5 and 6 and FSL report and that is one of the basis for the learned Sessions Judge to convict the accused for the offence punishable under Section 302 of IPC. As per the inquest report - Ex.P4, the statement of PW.9 was recorded on 4.4.2013. He has stated that on 3.4.2013 at about 7 p.m. when the deceased was on his way in a bike from Shettihalli to their village, near Doddanahalli, the accused stopped the deceased and abused that he had illicit relationship with his wife and "suddenly assaulted him with club and thereafter dragged him to the garden and assaulted with chopper on the backside of his head". Admittedly as already stated supra, the investigating authority has not seized the "chopper". At serial No.11 of the inquest report, it is stated that the probable cause of death is that the accused abused the deceased stating that he had illicit relationship with his wife (i.e., wife of the accused) and assaulted with "club and chopper". At serial No.12 of the inquest report, it is stated that on 3.4.2013 at 7 p.m., when the deceased was on his way to his village, near Doddanahalli, the accused assaulted him with "stick and chopper". PWs.2 ,3 and 8 who are alleged to be panchas have stated at paragraph-17 of the inquest report that the reason for the alleged incident was illicit relationship between the deceased and the wife of the accused and therefore the accused developed enmity and assaulted the deceased with "club and the chopper". The said material evidence has been ignored by the learned Sessions Judge. Admittedly, in the present case, "the wife of the accused with whom the deceased had illicit affairs as alleged is neither examined nor chopper was recovered" and on that ground alone, the impugned judgment and order of conviction is liable to be set aside.53. The learned Additional SPP though contended that recovery of M.O.5 - club and M.O.6 shirt of the accused by P.W.22 the investigating officer and Ex.P.14 FSL report clearly depicts the involvement of the accused, the same cannot be accepted in view of the fact that the incident alleged to have been occurred at Doddanahalli Village and the residence of the deceased is at Hattiganahalli which is about 10 kms away from Doddanahalli and none of the villagers of Doddanahalli, where the alleged incident is said to have have been occurred, has been examined, when it is in the same vicinity. Mere recovery of M.O.5 club and M.O.6 shirt of the accused at the instance of the accused cannot be presumed that the accused is involved in the homicidal death of the deceased in the absence of any cogent material produced by the prosecution. Therefore on that ground also, the impugned judgment and order of conviction cannot be sustained.54. Moreover, there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their earlier statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. It is well settled that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.55. As already stated supra, the entire case of the prosecution is based on the alleged illicit relationship of the deceased with the wife of the accused. No material is produced to prove the alleged illicit relationship either by examining any of the villagers, as the distance between the village of the accused and deceased is about 10 kms, there are no eye witnesses to the said incident, no theory of last seen together of the deceased with the accused and the entire case based on the oral statement made by the deceased to his father - P.W.1 is not proved by the prosecution beyond all reasonable doubt which generally leads to the conclusion that it is the accused person and nobody else has committed the crime, is not established. Firstly, on the date of the alleged incident, presence of the accused and secondly, the circumstances for the motive to commit the homicidal death of the deceased by the accused are not proved and on these grounds, the impugned judgment and order of conviction cannot be sustained.56. Admittedly as per the evidence of P.W.1, the deceased called him at about 6.30 p.m. stating that the accused had assaulted him with a stick and dragged him to the garden and thereafter, assaulted him on the back of his head with "chopper" as could be seen from Ex.P.1 - complaint. According to the evidence of P.W.13, to reach the spot from the village of the deceased/P.W.1 to the scene of offence, they took about 45 minutes. According to the evidence of P.Ws.3 and 5, the blood was oozing from the head of the deceased and by the time, they reached the spot, it would have been one hour fifteen minutes. Therefore, it is impossible to believe that the person, who had suffered head injury with a blow by a chopper would be conscious, even after one hour fifteen minutes in view of the evidence of P.W.19-Dr.Nagaraj , who has stated about open wound in occipital regions towards left side measuring 5 x 4 x 3 x 2 cms., and that the deceased might have been unconscious and would have never made such statements. As already stated supra, admittedly, either P.W.1 or P.Ws.2 to 7 have whispered about any statement being made when the deceased was in a 'fit state of mind'. In the absence of the same, the alleged oral dying declaration narrated by P.W.1 in the complaint and evidence of P.Ws.1, 2 to 7 cannot be believed. Once the dying declaration is not believed, then there remains no legal evidence on the basis of which the accused-appellant could be convicted.57. It is also not in dispute that the doctor - P.W.19 has stated in his cross-examination that it may be possible to cause such injury if a person plies the vehicle in a rash and negligent manner and hits a tree. Though he has denied the suggestion that the deceased died in view of the road traffic accident, the fact remains that absolutely there is no oral or documentary evidence adduced by the prosecution either to show that the homicidal death of the deceased was caused at the instance of the accused or the presence of the accused when the accident occurred. The entire case of the prosecution is based on the alleged oral dying declaration of the deceased. But there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate, there is no specific statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a 'fit state of mind'. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.58. Admittedly, in the present case, it is not the case of the prosecution that the deceased has made the dying declaration - statement either before P.W.1 or P.Ws.2 to 7 when he was in a 'fit state of mind'. In view of the same, the learned Sessions Judge ought not to have convicted the accused based on the oral dying declaration with regard to alleged illicit relationship of the deceased with the wife of the accused without there being any basis. The Hon'ble Supreme Court while considering the provisions of Section 32(1) of the Evidence Act in the case of Sabbita Satyavathi -vs- Bandala Srinivasarao and Others reported in 2005 SCC Crimes 585 at paragraphs 10, 20 and 21 has held as under:"10. In her opinion, the deceased died due to injuries to his vital organs such as heart and left lung causing haemorrhage, shock and injuries to the skull.20. The next question is whether the second dying declaration made to the Medical Officer can be acted upon to convict A-1 and A-2. We have found on a careful scrutiny of the evidence on record, a few features which have remained unexplained. According to the prosecution, only A-1 was armed with a sharp-cutting weapon such as knife and according to the prosecution evidence, A-1 stabbed the deceased twice. However, we find as many as seven incised injuries on the person of the deceased. There is only one lacerated injury and one contused swelling apart from the fracture of the left little finger. The manner of occurrence, therefore, as alleged by the prosecution does not fit in with the findings of the Medical Officer having regard to seven incised injuries found on the person of the deceased.21. There is yet another reason which casts a serious suspicion on the second dying declaration. According to the Medical Officer, PW 13, the injured was brought to the hospital at about 8.45 p.m. and was alive for about 1 hour and 20 minutes thereafter. She started the treatment of the injured in right earnest and 5 or 6 minutes thereafter she recorded the statement of the deceased which took about 10 to 15 minutes. According to her, at 9.15 p.m. the patient started gasping for breath and became unconscious. The picture that we get is that as soon as the Medical Officer completed recording his statement the injured became unconscious. He is said to have ultimately died at about 10.10 p.m. The respondents have contended that the presence of a large number of political personalities at the hospital, having regard to the fact that the deceased was also a person well known in the locality makes it doubtful whether the statement was correctly recorded or recorded at all. In fact, it is contended that having regard to the injuries sustained by the deceased, he would not have been in a position to make any statement even if he was alive. He must have become unconscious soon after suffering the injuries and there was no question of his either making a statement before PW 1 or before the Medical Officer.There is substance in the argument advanced on behalf of A-1 and A-2. PW 13 admitted that death of the deceased was due to injuries to vital organs such as heart and left lung. We find from the post- mortem report that the left lung had suffered incised injuries at two places. Apart from the injuries to the left lung, it was also found that one of the injuries caused on the left side of the chest had pierced the body to such an extent that the ventricle of the heart also suffered an incised injury over the anterior aspect. It appears from the post-mortem report that the same stab injury caused damage to the left lung as also to the heart. This only indicates that the stab injuries were caused to the deceased with such great force that they not only fractured one of his ribs but also entered the thoracic cavity and injured the left lung and the ventricle of the heart. With such injuries, we entertain serious doubts as to whether the injured could have given two dying declarations as alleged by the prosecution, one at about 7.00 p.m. and the other at about 8.45-9.00 p.m. This is also supported by the medical evidence on record inasmuch as PW 13 has herself stated that if such an injury is caused to the heart, the injured would become unconscious immediately. It, therefore, appears to us that after suffering the injuries the deceased must have become unconscious immediately. There was, therefore, no question of his making a dying declaration to anyone thereafter. We also notice the fact that according to PW 1, after making a dying declaration, the deceased walked a few steps with him with his help till such time they got a rickshaw which carried them to the hospital. According to the Medical Officer, PW 13, a person with such injuries could not walk at all even with the help of someone else. Having regard to the severe nature of injuries and the vital organs involved which suffered incised injuries such as heart and the lungs, we entertain a serious doubt about the recording of the second dying declaration by the Medical Officer almost two hours after the occurrence."The Apex Court while considering the provisions of Section 32 of the Evidence Act, in the case of Puran Chand -vs- State of Haryana reported in (2010) 6 SCC 566, at paragraphs-15 and 16 has held as under:"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.16. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests."The Hon'ble Supreme Court in the case of Muralidhar alias Gidda and Another -vs- State of Karnataka reported in (2014)5 SCC 730 at paragraphs-15 to 18 has held as under:"15. Of the 37 witnesses examined by the prosecution, PW 4, PW 5 and PW 15 are the eyewitnesses but they have turned hostile to the case of the prosecution. The first medical examination of the deceased Pradeep and so also the injured Umesha was done by PW 1 (Dr Latha) at about 9.30 p.m. on 17-8-2002. She has not certified that Pradeep was in a fit state to make any statement. PW 25 (Dr Balakrishna) at the relevant time was Assistant Professor of Surgery at K.R. Hospital where deceased Pradeep was taken immediately after the incident. At about 9.40 p.m. on 17-8-2002, PW 36 (Kodandaram, PSI) gave a memo to PW 25 stating that one patient (Pradeep) was admitted in the hospital and requested him to verify as to whether the patient was in a position to give statement. In his cross-examination, PW 25 has stated that at 9.35 p.m., he saw the patient (Pradeep) when he was kept in operation theatre of casualty for emergency treatment. He has also deposed that a group of doctors was providing treatment to him. His deposition does not establish that Pradeep was under his treatment. The recording of Pradeep's statement by a constable (PW 30) as dictated by PW 36 (PSI) in this situation raises many questions. The trial court found this absurd. It is the prosecution version that PW 30 has recorded Ext. P-22 as dictated by PW 36 (PSI). Thus, Ext. P-22 is not in actual words of the maker. The trial court in this background carefully considered the evidence of PW 25, PW 30 and PW 36 along with Ext. P-22. The trial court has noted that PW 25 failed to confirm in his testimony that he was treating deceased Pradeep when he was brought to the hospital. Moreover, PW 25 admitted overwriting with regard to the time written on Ext. P-22. The trial court also observed that though there was lot of bleeding injuries found on the person of Pradeep, PW 25 did not say anything about the quantity of loss of blood.16. Dealing with the testimony of PW 30, the trial court has observed that in his cross-examination, he has admitted that he did not record the statement in the words of the maker (Pradeep) but wrote the statement as dictated by PW 36. Moreover, PW 30 in his cross-examination had admitted that at the time Pradeep was attended to by the doctors, he was not inside. Then, in respect of Ext. P-22, the trial court observed that the names of accused Gunda (A-3) and Swamy (A-5) appear to have been inserted in different ink later on.17. On a very elaborate consideration of the entire evidence, the trial court was of the view that Ext. P-22 did not inspire confidence and the credibility of Ext. P-22 has not been established to the satisfaction of the court. Accordingly, the trial court held that conviction of the accused persons cannot be based on Ext. P-22 and the deposition of PW 36, PW 25 and PW 30.18. The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, in our opinion, this by itself creates a lot of suspicion about credibility of such statement and the prosecution has to clear the same to the satisfaction of the court. The trial court on overall consideration of the evidence of PW 25, PW 30 and PW 36 coupled with the fact that there was overwriting about the time at which the statement was recorded and also insertion of two names by different ink did not consider it safe to rely upon the dying declaration and acquitted the accused for want of any other evidence. In the circumstances, in our view, it cannot be said that the view taken by the trial court on the basis of evidence on record was not a possible view. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court."59. The Hon'ble Supreme Court while considering the provisions of Sections 149 and 300 of IPC., in the case of Ganesh Datt -vs- State of Uttarakhand reported in 2014 Criminal Law Journal 3128 (SC) has acquitted the accused in view of the fact that the Ocular evidence with respect to assault by accused is totally inconsistent with medical evidence, investigation is tainted, eye witnesses are interested as well as inimical witnesses and denial of injuries on person of accused by them makes their evidence unreliable, blood stained earth though seized from spot by the Investigating Officer, was not sent for chemical examination, and sites of assault, therefore, was not established by the prosecution. Further at paragraphs-14, 15, 18, 19, 20 and 21 it was held as under:"14. Per contra the learned Additional Advocate General appearing for the respondent State contended that the injuries on the person of appellant-accused are not very grievous in nature and the ocular evidence is clear, cogent and non- explanation of the injuries on the appellant- accused ipso facto cannot be the basis to discard the prosecution case and the conviction and sentence imposed on the appellants are sustainable.15. The prosecution case is that the appellants armed with dangerous weapons came and attacked PW 3 Ram Lakhan and his sons resulting in the death of Prabhunath and injuries to PW 2 Moti Lal.The prosecution examined PW 1 Bali Raj, PW 2 Moti Lal and their father PW 3 Ram Lakhan as having witnessed the occurrence. They have testified that on 26- 8-1989 at about 6.00 a.m., when they were sitting in front of their house the accused persons; Sudarshan armed with country- made pistol, Deep Narain with a gun, Jagdish with an axe, Rajendra and Ganesh Datt with lathis, came there and Sudarshan shouted to kill them today by so saying he and Deep Narain fired shots at Prabhunath and PW 2 Moti Lal and Jagdish tried to attack on the neck of PW 2 Moti Lal with axe which he defended by his left hand resulting in injuries and Rajendra and Ganesh Datt attacked them with lathis. On hearing the sound of firing and shouting, the villagers gathered there and the accused fled away. PW 3 Ram Lakhan took his injured sons Prabhunath and PW 2 Moti Lal to Police Station Rudrapur and lodged complaint and the injured were admitted in Jawahar Lal Nehru Hospital. PW 6 Dr A.K. Rana examined injured Prabhunath at 9.40 a.m. on 26-8-1989 and found 3 incised wounds on the left arm, 2 contusions with multiple puncture wounds on the neck and the left shoulder and an abrasion on the top of head. He directed to take x-ray of head, neck and left shoulder and found the general condition of the injured very serious. He opined that the incised wounds were simple and could have been caused by any sharp-edged weapon and the abrasion was simple and could have been caused by any hard object. He has not expressed any opinion with regard to contusions since they were kept under observation. He also examined PW 2 Moti Lal at 9.45 a.m. in the same hospital and found 2 contusions; on the forehead and below left eyelid, punctured wounds on the chest and the right arm and an incised wound on right forearm and opined that the injuries were simple in nature. Prabhunath died on 26-8-1989 itself in the hospital. PW 4 Dr S.M. Pant conducted autopsy and found the same injuries mentioned above and opined that the deceased had died of shock and haemorrhage as a result of ante-mortem injuries and further observed that the death has occurred a day before and there was no firearm injury. Ext. A-8 is the autopsy report. From the above it is clear that Prabhunath died of injuries sustained during the occurrence.18. It is contended that the appellant/accused Sudarshan sustained extensive injuries and appellant Deep Narain was also injured during the occurrence. In the cross-case Dr J.P. Arora has testified that he examined Sudarshan at 7.30 a.m. on 26-8-1989 at Jawahar Lal Nehru Hospital, Rudrapur and found the following injuries on his body:"(i) Incised wound 4 cm 0.5 scalp-deep on left side of head parietal region 11 cm left from ear. Blood oozing present. Intervening tissues clean cut.(ii) Incised wound 2 cm 0.25 cm scalp-deep on left side of the head, 7.5 cm above left ear. Blood oozing present. Intervening tissues clean cut.(iii) Incised wound 5 cm 2 cm scalp-deep on right side of forehead, cm above right eyebrow. Intervening tissues clean cut. Blood oozing present.(iv) Incised wound 4 cm cm skin-deep on right cheek, 3 cm in front of left ear. Intervening tissues clean cut. Blood oozing present.(v) Incised wound 4 cm 0.2 scalp-deep on left side of head, 6 cm above right eyebrow.(vi) Abrated contusion cm cm on right side of face, 4 cm away from right eye outer angle.(vii) Abrated contusion 5 cm cm on front of neck left side, 3 cm above right clavicle.(viii) Incised wound 2 cm 0.2 cm bone-deep on front of left little finger, 4 cm above root of finger. Intervening tissues clean cut. Blood oozing present.(ix) Incised wound 2 cm 0.2 cm bone-deep on front of left ring finger, 3.5 cm above base. Intervening tissues clean cut. Blood oozing present.(x) Incised wound 1 cm 0.2 cm skin-deep on front of tip of left ring finger. Also blood oozing. Intervening tissues clean cut.(xi) Incised wound 3.75 cm 0.25 cm bone-deep on ground of left middle finger, oblique 4.5 cm above base of finger. Intervening tissues clean cut. Blood oozing present.(xii) Incised wound 4.5 cm cm bone-deep on front of left index finger. Oblique. Intervening tissues clean cut. Blood oozing present.(xiii) Incised wound 4 cm 0.2 cm bone-deep on outer side of left hand, 2 cm above index finger, intervening tissues clean cut.(xiv) Incised wound 2 cm 0.2 cm skin-deep, inner side of left thumb root, intervening tissues clean cut. Blood oozing present.(xv) Two lacerated wound each size 2 cm cm depth went to deeper tissue and cm cm depth went to deeper tissue, cm apart from each other. Blood oozing. On right scapular region upper part, in area of 8 cm 3 cm.(xvi) Abrasion 2 cm 1 cm on right scapular region, 3.5 cm inner to Injury (xv).(xvii) Abrasion 1.5 cm 1 cm on outside of right shoulder.(xviii) Abrasion 1.5 cm 1 cm on back of right arm, 8 cm below armpit.(xix) Abrasion 1 cm cm on right side of chest on back side and below the hair of 4.5 cm."He has opined that all the injuries were fresh and Injuries (i), (ii), (iii), (v), (viii) to (xiv) and (xv) to (xix), were kept under observation and rest of the injuries were simple. He has also testified that he examined Deep Narain at 9.15 a.m. on the same day at the hospital and found lacerated wound 1.25 cm 0.5 cm bone- deep transverse over right eyebrow. Afterwards he has expressed opinion that Injuries (i) to (v) and (viii) to (xiv) found on Sudarshan could have been caused by sword.19. In the trial, in examination-in-chief PW 1 Bali Raj, did not state anything about the injuries on Sudarshan and Deep Narain. In the cross-examination he has testified that Sudarshan Verma and Deep Narain did not suffer any injury during the occurrence and further stated that 16-17 days prior to occurrence Sudarshan Verma suffered injuries in a jeep accident. This testimony cannot be true for the reason that Dr Arora has examined him in the hospital on the occurrence day and has found injuries which were fresh on his body. PW 2 Moti Lal in his examination-in-chief did not state anything about the injuries on the accused. In the cross-examination he has stated that during the occurrence accused Sudarshan Verma snatched the axe from the hands of accused Jagdish and his hand was injured during snatching process and an injury was also caused near the eyes by the axe. He has also stated that he did not see whether any injury was caused to Deep Narain during the occurrence. It is his further testimony that he is mentioning above for the first time before the court. It is needless to say that no reliance can be placed on such a testimony. In the same way, PW 3 Ram Lakhan has not stated anything about the injuries of the accused in his testimony-in-chief. In the cross- examination he has stated that he did not see accused Sudarshan suffering any injury during the occurrence.20. In Babulal Bhagwan Khandare v. State of Maharashtra [(2005) 10 SCC 404 : 2005 SCC (Cri) 1553] this Court held: (SCC p.414, para 27)"27. ... Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance."21. The eyewitnesses who deny the presence of injuries on the person of the accused are lying on most material point, and therefore, their evidence is unreliable. It assumes much greater importance where the evidence consists of interested or inimical witnesses. In the present case admittedly there was enmity between the accused family and the deceased family and PWs 1 to 3 are interested as well as inimical witnesses and their denial of injuries on the person of accused, makes their evidence unreliable."60. The Hon'ble Supreme Court in the case of Laxman -vs- State of Maharashtra reported in AIR 2002 SC 2973, while considering the provisions of Section 32 of the Evidence Act, at paragraphs-3 and 5 has held as under:"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified s

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tatutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that:"in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] ."61. Though the learned Additional SPP relied upon the dictum of the Hon'ble Supreme Court in the case of Parbin Ali and Another -vs- State of Assam reported in (2013)1 SCC (Crl) 841 with regard to dying declaration that the defence could not build a counter case to establish that the deceased may not have been in fit state to make a declaration when the relative, wife, and father-in-law of the deceased have deposed in a categorical manner that by the time, they arrived at the place of occurrence, the deceased was in a fit state of health to speak and make a statement and, in fact, he did make a statement as to who had assaulted him. Nothing was suggested to these witnesses in cross- examination about the fitness of deceased to make declaration. But the fact remains that whether such a person (deceased) receiving certain injuries, would be in a position to speak or not, was not brought out anywhere in the evidence and in that backdrop, it was concluded that the deceased was in a conscious state and in a position to speak. In the present case, none of the prosecution witnesses have whispered a word that the deceased was in a 'fit state of mind' to make a statement and the case of the prosecution cannot be believed in view of the evidence of P.Ws.3 and 5 that the blood was oozing from the head of the deceased when P.W.1 reached the scene of occurrence after one hour 15 minutes and the evidence also depicts that the deceased died on the way to the hospital. Therefore, in the absence of any material documents, the evidence of the prosecution witnesses that the deceased had made a oral dying declaration cannot be believed and therefore, the judgment relied upon by the learned Additional SPP has no application to the facts and circumstances of the present case.62. In another judgment relied upon by the learned Additional SPP in the case of Yunis Alias Kariya-vs- State of M.P. reported in 2003(1) SCC 425, the Hon'ble Supreme Court considering the provisions of Sections 302 and 149 of IPC., has appreciated the evidence wherein the eight accused armed with deadly weapons, attacked deceased in broad daylight in a market place causing his death which crime was witnessed by several persons, three of whom appearing as eye witnesses, and their testimony of the eye witnesses were tallying with each other and three injuries which were sufficient to cause death as referred to by the Autopsy Surgeon as well as the eye witnesses, though two other injuries were not mentioned by Autopsy Surgeon held on facts that the oral testimony of the eye witnesses as well as medical and other evidence establish commission of the crime. Admittedly, in the present case there are no eye witnesses or the last seen theory of the alleged offence. The entire case of the prosecution is based only on the circumstantial evidence. The circumstances enumerated in the complaint as well as in the evidence of P.W.1 are not proved beyond all reasonable doubt and all the evidence of the witnesses, complaint and inquest report, statement made at the time of recording of inquest report and the postmortem clearly depicts that they are inconsistent and contrary, and are not proved beyond all reasonable doubt. Therefore, the said judgment has no application to the facts and circumstances of the present case.VII - CONCLUSION63. On meticulous reading of the entire evidence of the prosecution witnesses and material documents, this Court is of the considered opinion that, the prosecution has failed to prove beyond all reasonable doubt the involvement of the accused on the basis of charge framed that the deceased had illicit relationship with the wife of the accused. Therefore, the impugned judgment and order of conviction under the provisions of Section 302 of IPC and sentencing him to undergo imprisonment for life is liable to be set aside. In view of the above, first point is answered in the affirmative holding that, the accused/appellant in Criminal Appeal No.409/2015 has made out his case to interfere with the impugned judgment and order of conviction, sentencing him to undergo imprisonment for life for the offence punishable under Section 302 of IPC. The second point is also answered in the affirmative holding that, the State has made out its case that it is mandatory on the part of the learned Sessions Judge to impose fine with the punishment of imprisonment for life as contemplated under the provisions of Section 302 of IPC. Unfortunately, in the present case, the learned Sessions Judge while convicting the accused under the said offence has not imposed fine as mandated under Section 302 of IPC., and only to that extent, the appeal filed by the State stands disposed off.64. For the reasons stated above, we pass the following:ORDERi) Criminal Appeal No. 409/2015 filed by the accused is allowed;ii) The impugned judgment of conviction and order of sentence dated 04.03.2015 passed by the Principal Sessions Judge, Hassan, in S.C.No.190 of 2013 is set aside;iii) Consequently, the accused is acquitted of the charges framed against him for the offence punishable under Section 302 of IPC;iv) The accused is set at liberty forthwith, if he is not required in any other case;v) Registry is directed to communicate the operative portion of this judgment to the concerned Jail Authorities to release the accused, if he is not required in any other case after following the Standard Operating Procedure and in accordance with law;vi) Criminal Appeal No.896/2015 filed by the State against non-imposition of fine is allowed holding that it is mandatory on the part of the Court to impose fine while convicting the accused for the offence punishable under Section 302 of IPC. Since the impugned judgment and order of conviction is set aside, question of imposing fine in the present case would not arise;vii) Registry is also hereby directed to remit the original records to the jurisdictional Court along with a copy of this judgment immediately;viii) If the accused has deposited any fine amount, the same is ordered to be refunded, on proper identification and acknowledgment.
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