(Prayer: This Criminal Appeal is filed under Section 374(2) of the Cr.P.C. praying to set aside the judgment and order of conviction dated 27-8-2018 and sentence dated 31-8-2018 passed by the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, in Sessions Case No.137 of 2014, convicting the appellant/accused for the offence punishable under Section 302 of IPC.)

CAV Judgment

T. Venkatesh Naik, J.

1. The appellant/accused has preferred this appeal challenging the judgment of conviction dated 27-8-2018 and the order of sentence dated 31-8-2018 in Sessions Case No.137 of 2014 on the file of the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC').

2. For the sake of convenience, the parties herein are referred to as per their ranks before the trial Court. The appellant is the accused and the respondent is the complainant- State before the trial Court.

3. The brief facts of the prosecution case is that, the accused had illicit relationship with one Savitha (hereinafter referred to in as 'deceased') for about one and half-a-year prior to her death. The father and the mother of the accused came to know about their relationship and in this regard, in the absence of the accused, on 1-3-2014, they visited the house of the deceased at Vittasandra Village, where the deceased and the accused lived together and they objected her illicit relationship with their son. On the next day, i.e. on 2-3-2014 at 8:00 a.m., when the accused visited the house, the deceased informed the accused about arrival of his parents to the house and objection to their relationship and in this regard, there was scuffle between him and the deceased. In the said scuffle, the accused got enraged and with an intention to eliminate the deceased, took kerosene, poured on her, set her ablaze and ran away from the house. As a result, the deceased suffered severe burn injuries on her person and she was shifted to Victoria Hospital, Bengaluru, by her neighbours, PWs.2 and 3. When the deceased was under treatment on 2-3-2014, she gave her statement-Ex.P7 (dying declaration) before PW9-Mohan Kumar, Assistant Sub-Inspector of Police, Electronic City Police Station, Bengaluru, in the presence of PW10-Dr. Priyadarshini N. Based on said statement, the jurisdictional Police registered a case against the accused for the offence punishable under Section 307 of IPC and on the following day of the incident at 8:00 a.m., the injured succumbed to burn injuries. Hence, the Investigating Officer incorporated Section 302 of IPC. During the course of investigation, the accused was arrested. The Investigating Officer, recorded the statements of the witnesses, visited the scene of offence and after conclusion of the investigation, filed the charge-sheet against the accused for the offence punishable under Section 302 of IPC.

4. In order to prove its case, the prosecution in all examined twelve witnesses as PW1 to PW12, got marked eleven documents as per Ex.P1 to Ex.P11 and three material objects were marked as per MO1 to MO3. For the defence, the mother of the accused was examined as DW1.

5. On assessing the entire evidence, the trial Court, convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months and while convicting the accused, the trial Court mainly relied on the evidence of PW9-Assistant Sub-Inspector of Police, who recorded the dying declaration-Ex.P7 in the presence of PW10- Dr. Priyadarshini N., and also medical evidence of PW7- Dr. Pradeep Kumar, who conducted Post-Mortem examination as per Ex.P6 on the dead body of the deceased, and the evidence of PW12-FSL Officer, reached the conclusion that the accused has committed the aforesaid offence.

6. Assailing the findings of the trial Court, Sri Sharath J.M., learned counsel for the appellant/accused, would contend that the judgment and order of conviction and sentence passed by the trial Court is not in accordance with law; the alleged eyewitnesses, i.e. PWs.1, 2 and 3, are the neighbours of the deceased. During their chief-examination, they have deposed that they do not know who set fire on the deceased and they have not seen the accused at the scene of occurrence, but the prosecution has quoted these witnesses as eyewitnesses to the alleged incident, wherein these witnesses have not supported the case of the prosecution; during the cross-examination of PWs.4 and 5, i.e. the mother and the sister of the deceased, they have deposed that the deceased was not conscious when they visited the hospital and the deceased was also not in a position to speak. Moreover, the motive is also not established, as these witnesses are the best persons to say about the illicit relationship between the accused and the deceased, but there is no whisper about the alleged illicit relationship between the accused and the deceased. He would further contend that the case of the prosecution is that though the parents of the accused are stated to have threatened/abused/objected the deceased about her illicit relationship with their son, but PW11-Investigating Officer neither recorded their statements nor made them as witnesses to give evidence and this creates serious doubt in the mind of the Court.

7. Further, the learned counsel would contend that during the chief-examination, PW9-Assistant Sub-Inspector of Police has deposed that he recorded the alleged dying declaration of the deceased in the presence of Dr. Nandini i.e. CW16, however, her actual name is Dr. Priyadarshini N. It is pertinent to note that, as per the charge-sheet material, the prosecution has cited the name of CW16 as Dr. Nandini, which creates serious doubt, in whose presence, the dying declaration was recorded. Further, the alleged dying declaration is not in accordance with the prescribed format as laid down by the Hon'ble Apex Court in catena of decisions. Further, PW9 has not given any valid reasons as to why he did not call the nearby Executive or Judicial Magistrate while the deceased was admitted to Victoria Hospital at 10:00 a.m., but the alleged dying declaration was recorded between 4:45 and 5:15 p.m. and there was nearly eight hours time gap to record the dying declaration, hence, the alleged dying declaration is cropped up for the purpose of this case. Thus, the prosecution has utterly failed to prove the alleged dying declaration, however, the trial Court solely relied upon the alleged dying declaration and wrongly convicted the accused, which is contrary to law. The Investigating Officer has not recorded the statement of the owner of the house, where the deceased was residing. Further, the Investigating Officer has not produced the phone call details and any incriminating evidence to show that the accused had illicit relationship with the deceased at the relevant point of time. Hence, the Investigating Officer has failed to investigate the case properly, but the trial Court relying on the report of the Investigating Officer has convicted the accused. Therefore, the findings recorded by the trial Court are incorrect and hence, the appeal deserves to be allowed.

8. Per contra, Smt. Rashmi Jadhav, learned Additional State Public Prosecutor appearing for the respondent-State, would contend that the accused has not disputed the death of the deceased, who died due to burn injuries. The entire prosecution case rests upon the dying declaration-Ex.P7 and the medical evidence. The prosecution witnesses, such as, PW9 has stated about the dying declaration recorded by him as per the statement given by the deceased in the presence of PW10 and PW10-Doctor has certified about the mental and physical fitness of the deceased to give statement. It is contended that PWs.2 and 3 have seen the burn injuries on the person of the deceased, they shifted the injured to the hospital for treatment and to that effect, they have supported the case of the prosecution. Further, the spot, inquest and seizure mahazar witnesses have supported the case of the prosecution. It is a fact that the accused and the deceased were in illicit relationship and thus, the parents of the accused visited the house of the deceased and objected their relationship, due to which, the deceased denied the accused to enter her house. Thus, there was scuffle between the accused and the deceased and the accused being enraged by the act of the deceased, poured kerosene on the person of the deceased and set her ablaze. She would further contend that the Investigating Officer conducted mahazar in the house of the deceased, where he seized kerosene bottle, bed-sheet and match-box vide MOs.1 to 3 under mahazar-Ex.P1. The recovery of MOs.1 to 3 is also proved. The Post-Mortem report-Ex.P6 shows the burn injuries on the deceased and the Doctor opined that the death is due to shock as a result of burn injuries sustained. These are the facts which were weighed by the trial Court to hold that the circumstances stood proved against the accused and hence, she submits that there are no reasons to interfere with the judgment of conviction and sentence of the trial Court.

9. Considering the submissions of both side and examining the material on record, the point that arises for our determination in this appeal is as under:

          Whether the impugned judgment and order of conviction and sentence is sustainable?

10. The relationship between the deceased and the accused is disputed. As rightly pointed out by the learned counsel for the accused, there was no eyewitness to the incident. The case was based on circumstantial evidence. The circumstances relied on by the prosecution are as follows:

          i. Nature of death of the deceased (homicidal death),

          ii. Motive,

          iii. Last seen circumstance, and

          iv. Dying declaration of the deceased.

Reg: Nature of death of the deceased (homicidal death)

11. To prove that the death of the victim was homicidal one, the prosecution relied on the evidence of PWs.1 to 3, who have stated that on 2-3-2014, in the morning, the deceased suffered burn injuries, thus, she was shifted to the hospital for treatment, and on 3-3-2014, she succumbed to burn injuries. PWs.4 and 5, the mother and the sister of the deceased, respectively, saw the dead body of the deceased in the hospital. To corroborate the testimony of PWs.1 to 5, the prosecution examined PW7-Dr. Pradeep Kumar, who conducted Post-Mortem examination on the dead body of the deceased and issued his report as per Ex.P6. As per the evidence of PW7 and Ex.P6-Post-Mortem report, the deceased had suffered the following injuries:

          "External Appearance

          1. Condition of Subject: Stout, emaciated, decomposed, etc.

          2. Wounds: Position, size, character.

          3. Fracture, dislocation etc.

          4. Mark of ligatures on neck.

          Dead body is that of a female measuring 155cm in length, moderately built. Rigor mortis present all over the body. Post mortem staining could not be appreciated due to burn injuries, Floeys Catheter present. Blue ink mark present over left thumb. Injection mark present over back of left wrist.

          Second and third degree burn injuries present over face, neck, front, sides and back of chest. Both upper limbs including palms, front, sides and back of abdomen in patches sparring external genitalia, both the thighs in front and sides. Upper and lower lips are involved in patches. Areas of redness and blackening present at places over burn injuries. Scalp hair and body hair are singed.

          Fractures Dislocation/More detailed description of injury or disease:

          80%-85% of total body surface area are covered by ante- mortem burns.

          Opinion as to cause of death: Death is due to shock as a result of burns injuries sustained."

          The Doctor opined that the death of the deceased was due to 80-85% burn injuries. From perusal of the evidence of PW7-Doctor, it clearly establishes that the deceased died on account of burn injuries sustained in the incident. Therefore, the prosecution proved that the death of the deceased is homicidal.

          Reg: Motive

12. According to the prosecution, the accused had illicit relationship with the deceased. Thus, the parents of the accused came to the house of the deceased, abused her and also threatened not to continue her relationship with their son. Hence, the deceased objected the accused for visiting the house and in that regard, there was scuffle between the deceased and the accused and being enraged by the act of the deceased, he poured kerosene and lit fire on her. None of the witnesses have deposed about this aspect. Neither the neighbours of the deceased, nor the parents of the deceased have stated about the motive. Motive is a double edged weapon, which may lead to false implication or commission of crime by one rival party against the other rival party. Therefore, motive is to be proved by leading corroborative piece of evidence. Unless other circumstances are proved, only based on motive circumstance, conviction cannot be placed. Reg: Last seen circumstance:

13. The prosecution relied on the evidence of PWs.2 and 3, neighbours of the deceased. As per the case of the prosecution, on 2-3-2014, in the morning, the deceased raised hue and cry with burn injuries on her person and immediately, the accused came out from her house. Whereas, PW2 has stated that about two and half years ago on the date of alleged offence, he was doing compound work of his house, at that time, the injured, Savitha, screamed from her house and the house of said Savitha was about 10 feet from his house and on hearing such sound, he saw Savitha coming out of her house screaming "Gj Gj" and thus, he informed the Police Station and the injured was given first-aid. The injured was shifted to hospital for treatment. He specifically stated that, he has not seen the accused. Thereafter, the mother of the injured came to the house and enquired him about one Somu, saying that said Somu is the husband of the injured, but he pleaded ignorance about Somu and for rest of the suggestions, he pleaded ignorance. Thus, the prosecution treated him as hostile witness and permitted to cross-examine. In the cross- examination, he denied the suggestion that, 'when he visited the house of the injured upon hearing her hue and cry, he saw one person running from said the house, he chased the said person, enquired him and disclosed his act'. He further denied the suggestion that, 'when the Police called him to the Police Station and showed the accused, he identified him'. Therefore, the evidence of PW2 is of no help to the case of the prosecution in order to prove the motive as well as the presence of the accused at the scene of occurrence.

14. In so far as the evidence of PW3 is concerned, he has stated that the house of the deceased is situated opposite to his house. In the year 2014, there was crying sound from the house of the deceased and upon hearing crying sound, he went there, some public had gathered and one lady in the said house suffered burn injuries. Somebody rescued her by covering blanket and thereafter, she was shifted to Victoria Hospital. Thereafter, the mother and the sister of the injured visited the hospital. He further stated that he does not know the reason for the said incident and he did not see the accused on the spot and he has not stated before the Police about witnessing of the accused at the spot. Hence, the prosecution treated even this witness as hostile witness and was permitted to cross-examine. In the cross-examination, he categorically denied the suggestion that, 'when he visited the house of the injured upon hearing her hue and cry, he saw one person running from said the house, he chased the said person, enquired him and disclosed his act'. He further denied the suggestion that, 'when the Police called him to the Police Station and showed the accused, he identified him'. Therefore, the evidence of PW3 is also of no help to the case of the prosecution to connect the accused to the crime. Thus, the last seen witnesses i.e., PWs.2 and 3 have turned hostile to the case of the prosecution and they do not depose anything before the trial Court that as soon they came to the house of the deceased, they saw the accused running out from the house. Hence, the last seen theory relied on by the prosecution creates doubt and therefore, the evidence of PWs.2 and 3 are of no avail to the case of the prosecution.

Reg: Dying declaration of the deceased:

15. The trial Court mainly relied upon the dying declaration made by the deceased. A dying declaration is a statement, written or spoken, made by a person who believes they are about to die, explaining the circumstances or cause of their impending death, and is admissible as evidence in the Court, because it is presumed they would speak the truth when facing death. This statement provides crucial information when the person is deceased and cannot testify, forming a key piece of evidence in cases where their death is under question, such as murder or accidental death.

16. PW4-Shobha and PW5-Sangeetha, mother and sister of the deceased, are hearsay witnesses. They have stated that 15 days prior to the death of the deceased, she was residing with the accused. It is their further evidence that after the incident, the neighbours of the deceased informed them that the deceased was set fire by pouring kerosene and they shifted her to Vanivilas Hospital, Bengaluru. Thus, they went to Vanivilas Hospital and they saw the victim, who was under treatment. The victim's body was fully burnt and she was speaking. Thus, they enquired her. The victim informed them that, "when she was alone, in her room, the parents of the accused, visited her room and objected her relation with the accused and after they leaving, when the accused visited the room, she informed him about objections raised by his parents and in the said conversation, there was quarrel between them and the accused poured kerosene on her and set fire, hence, she sustained burn injuries". They were treated as partly hostile witnesses and permitted to cross-examine.

17. In the cross-examination, they have admitted that when they visited the hospital, the victim was not in a position to speak and she had not spoken anything with them. They further admitted that when the neighbours informed them about the incident, the neighbours have not stated the name of the person who set fire. They further admitted that on 4-3-2014, when they visited the Police Station, they have not seen the accused in the Police Station, they saw the accused before the Court for the first time and they categorically admitted that they do not know who was responsible for the death of the deceased.

18. The prosecution further relied upon the evidence of PWs.9 and 10. PW9-Mohan Kumar, Assistant Sub-Inspector of Police, has stated that on 2-3-2014, he took the statement of the deceased in Victoria hospital in the presence of Dr. Nandini. He further stated that he obtained left and right thumb impression of the deceased to the dying declaration, but in the cross-examination, he has admitted that he has not specifically mentioned the thumb impression as either right thumb or left thumb and has failed to recognise the same.

19. PW10-Dr. Priyadarshini N., Casualty Medical Officer, Victoria Hospital, has stated that on 2-3-2014 at 4:45 p.m., she was also present while recording the statement of the victim/deceased and the deceased was in a fit condition to give statement. In the cross-examination, she has admitted that she does not know at what time the deceased was admitted to the hospital and what was administered to her. She clearly admits that before recording the statement of the deceased, she has not thoroughly checked blood pressure, pulse rate and heart rate and the same has not been mentioned in the dying declaration before recording the same. The prosecution has not at all placed case-sheet of the deceased. She further admits that she has not consulted the Doctor, who treated the deceased. She further admits that she has not signed the memo which was brought by PW9-Assistant Sub-Inspector of Police and did not verify any records to know the percentage of burns sustained by the deceased.

20. So far as dying declaration is concerned, the prosecution relied upon Ex.P7. On perusal of Ex.P7, it goes to show that the same was recorded by PW9-Mohan Kumar, Assistant Sub-Inspector of Police, in the presence of PW10- Dr. Priyadarshini N. on 2-3-2014 between 4:45 to 5:15 p.m., who certified that statement of the deceased was taken before her and the deceased was conscious till the end of recording her statement. The contents of Ex.P7 appear to be in descriptive manner.

21. It is well settled law that a dying declaration should preferably be in question and answer form and as far as possible, the exact words uttered by the injured must be reproduced. It is, therefore, much safer to keep the dying declaration short, concise and to the point and to pen down the questions and answers that have to be elicited from the declarant. In the instant case, PW9 recorded the statement of the deceased, which is in the form of dying declaration, which runs into two pages.

22. The prosecution has mainly relied upon the dying declaration. As per Section 32 of the Indian Evidence Act, 1872, there can be no dispute that the dying declaration can be the sole basis for conviction. However, such a dying declaration shall prove to be wholly reliable, voluntary and truthful; the maker thereof must be in a fit condition to make it.

23. Ex.P7-dying declaration recorded by PW9 shows that the deceased had suffered severe burn injuries and was admitted to Victoria Hospital, Bengaluru, and she answered the questions posed by him. The contents of Ex.P7 do not indicate the mental and physical condition of the deceased and PW10- Dr. Priyadarshini N. has admitted that she cannot tell that what was administered to the deceased on that day. PW10 has not mentioned blood pressure rate, pulse rate, and heart beat in the Certificate and she has also not mentioned about the Doctor, who treated the deceased. She further stated that she was not expert to treat burn patient and she did not consult the Doctor, who treated the deceased. Further, she has not examined any record to know the percentage of burn injuries on the deceased.

24. Thus, PW10 has not certified as to whether the deceased was fit to give statement before PW9, except her presence while recording the dying declaration. More particularly, the duty Doctor, who treated the deceased, was not examined by the prosecution. Dr. Nandini (CW16) shown as charge-sheet witness, but PW10-Dr. Priyadarshini N. was examined. Further, the Doctor who treated the deceased initially has not been examined. The prosecution also failed to produce the case-sheets of the deceased before the trial Court.

25. The evidence of PW9-Assistant Sub-Inspector of Police and PW10-Doctor creates doubt about recording of the same and fitness of the deceased to make such declaration in view of the evidence of PW10.

26. Dying declaration is very important aspect as it amounts to a statement of the deceased verbatim. Ex.P7-dying declaration in this case cannot be treated as wholly trustworthy as it is shrouded with doubts. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and the maker thereof must be in a fit condition to make it. As per the evidence of PWs.9 and 10, the deceased made oral dying declaration, however, PWs.4 and 5, mother and sister of the deceased, have stated that as soon as they visited the hospital, the deceased was not in a position to give any statement and she did not speak with them, which goes to show that the deceased was not in a fit condition to make any statement. When the injured had suffered 85% burn injury, it creates doubts as to whether she was able to give statement and to that extent, no material is placed.

27. It is settled law that if the dying declaration is truthful, it can lead to conviction. In the light of the above principles, we have examined the dying declaration. A doubt arises in the mind of the Court as to mental and physical fitness of the deceased to give statement, as the deceased had sustained extensive burn injuries on various parts of her body including face and lip and despite this condition, the statement of the deceased was allegedly recorded. PWs.9 and 10 being responsible official witnesses said to have recorded the dying declaration of the deceased, which creates suspicion and the manner of recording the dying declaration appears to be doubtful. The trial Court ought to have assessed the evidence of PWs.9 and 10 in strict sense keeping in view Section 32 of the Indian Evidence Act, 1872, however, lost sight of their evidence.

28. In this regard, the Hon'ble Supreme Court in the case of JAYAMMA AND ANOTHER v. STATE OF KARNATAKA (Live Law 2021 SC 251) has addressed the scope of Section 32 of the Indian Evidence Act, 1872, and observed that the conviction of the accused cannot be upheld only on the basis of the dying declaration.

29. From the overall evidence of the prosecution witnesses, it transpires that PWs.1 to 3 being the neighbours of the deceased have stated about the incident that the deceased sustained burn injuries and the fact about shifting her to the hospital for treatment and her death on account of burn injuries, but they have not stated that it is the accused, who caused the death of the deceased. Hence, PWs.1 to 3 are not eyewitnesses to the incident, but they are chance witnesses, as they came to the scene of offence after the occurrence of the incident. Thus, their evidence is of no avail to the prosecution.

30. The trial Court relied upon the testimonies of PWs.4 and 5, mother and sister of the deceased, respectively, who are hearsay witnesses. They have stated about the role played by the accused in their chief-examination, however, in the cross- examination, they have given clear go-bye to their depositions made in chief-examination that the accused caused the death of the deceased and at the time of incident, the accused was present in the house of the deceased.

31. From the above evidence on record, can it be said that the presence of the accused in the house of the deceased on 2-3-2014 at 8:00 a.m., has been firmly and cogently established. According to us, the answer must be in 'Negative'. There are several omissions that have been brought out in the cross-examination of PWs.4 and 5, which seriously dent the credibility of their testimonies.

32. The main principle to be satisfied in a case of conviction based on circumstantial evidence is that the proved circumstances must be complete and incapable explanation of any hypothesis than that of guilt of the accused. All the above aspects, when seen in the context of the case being dealt with by us, a case of circumstantial evidence, it would be difficult to connect the accused to the crime. The chain of events being sought to be projected is laden with deficiency creating significant gap, leading to other possible hypothesis as aforementioned. Due to such missing links, the finding of guilt cannot be recorded. In this light, the guilt of the accused has not been proved beyond reasonable doubt and the impugned judgment is, thus, liable to be set aside, as the trial Court lost sight of each chain link to establish the charges leveled against the accused and it requires interference since the same is not sustainable in the eye of law to come to a definite conclusion that it is the accused who set ablaze the deceased. Hence, we pass the following:

ORDER

          i. The appeal is allowed.

          ii. The judgment of conviction dated 27-8-2018 and the order of sentence dated 31-8-2018 in Sessions Case No.137 of 2014 on the file of the IX Additional District and Sessions Judge, Bengaluru Rural district, Bengaluru, is hereby set-aside.

          iii. The appellant/accused is acquitted of the charge for the offence punishable under Section 302 of the Indian Penal Code, 1860. He shall be set at liberty forthwith, if his detention is not required in any other case.

          iv. Order of the trial court with regard to disposal of the properties is maintained.

          Communicate a copy of this order to the trial Court along with its record, and the concerned Prison, forthwith.